BEYOND
SELF-INTEREST:
Asian Pacific Americans
toward a Community of Justice
A Policy Analysis of Affirmative Action
Professor Gabriel Chin
Professor Sumi Cho
Professor Jerry Kang
Professor Frank Wu
Table of Contents
EXECUTIVE SUMMARY
I
INTRODUCTION
II
AFFIRMATIVE ACTION: THE GENERAL DEBATE
II.A
The Case for Affirmative Action
II.A.1
II.A.2
II.A.3
II.B
The Merit Critique Is Muddy
II.B.1
II.B.2
II.B.3
II.C
Affirmative Action Remedies Racial Discrimination
Affirmative Action Creates a Better America
The Costs of Affirmative Action Are Acceptable
Merit Comes in Many Forms
Merit in the University
II.B.2.a) Academic Standards Have Risen
During the Affirmative Action Era
II.B.2.b) Measuring Academic Ability Is Hard
II.B.2.c) Grades and Test Scores Are Not Everything
Our Commitment to “Merit” Is Fickle
Race-Consciousness Is Not Racism
II.C.1
II.C.2
III
Color-Blindness Is Not Morally Mandated
Color-Blindness Is Gratuitous in an
Era of Judicial Retrenchment
AFFIRMATIVE ACTION & ASIAN PACIFIC AMERICANS
III.A APAs Have Suffered Racial Discrimination: The Past
III.A.1
III.A.2
III.A.3
The Law Explicitly Discriminated
Against Asian Immigrants
III.A.1.a) Immigration
III.A.1.b) Citizenship
APAs Suffered as Second Class Aliens
We Imprisoned More than 110,000
Japanese Americans During WW II
III.B The Model Minority Myth
III.B.1
III.B.2
III.B.3
The Model Minority Myth Is Misleading
APA “Success” Has Non-Racist Explanations
The Model Minority Myth Is Dangerous
III.C APAs Still Suffer Racial Discrimination: The Present
III.C.1
III.C.2
III.C.3
Stereotypes Plague APAs
APAs Suffer from Employment Discrimination
III.C.2.a) The Parity Concept Introduced
III.C.2.b) APAs Are Under-Parity or Would Be
but for Affirmative Action
III.C.2.c) Parity Obscures Discrimination Against APAs
APAs Are Victims of Racial Violence
III.D Admission Ceilings: The Problem of Negative Action
III.D.1
III.D.2
APAs Can Be Treated with Affirmative Action,
Neutral Action, and Negative Action
We Can Simultaneously Reject Negative Action
and Embrace Affirmative Action
IV CONCLUSION
HOW TO USE THIS DOCUMENT
ACKNOWLEDGEMENTS & NOTES
BIOGRAPHICAL INFORMATION
ENDNOTES
iv
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Beyond Self-Interest:
Asian Pacific Americans
Toward a Community of Justice
A Policy Analysis of Affirmative Action
Professor Gabriel Chin
Professor Sumi Cho
Professor Jerry Kang
Professor Frank Wu
i
ii
Table of Contents
EXECUTIVE SUMMARY
v
I
INTRODUCTION
1
II
AFFIRMATIVE ACTION: THE GENERAL DEBATE
3
II.A
3
II.B
The Case for Affirmative Action
II.A.1
Affirmative Action Remedies Racial Discrimination
3
II.A.2
Affirmative Action Creates a Better America
5
II.A.3
The Costs of Affirmative Action Are Acceptable
7
The Merit Critique Is Muddy
8
II.B.1
Merit Comes in Many Forms
8
II.B.2
Merit in the University
8
II.B.2.a) Academic Standards Have Risen
During the Affirmative Action Era
8
II.B.2.b) Measuring Academic Ability Is Hard
9
II.B.2.c) Grades and Test Scores Are Not Everything
9
II.B.3
II.C
III
Our Commitment to “Merit” Is Fickle
10
Race-Consciousness Is Not Racism
11
II.C.1
Color-Blindness Is Not Morally Mandated
11
II.C.2
Color-Blindness Is Gratuitous in an
Era of Judicial Retrenchment
12
AFFIRMATIVE ACTION & ASIAN PACIFIC AMERICANS
13
III.A APAs Have Suffered Racial Discrimination: The Past
13
III.A.1
The Law Explicitly Discriminated
Against Asian Immigrants
13
III.A.1.a)
Immigration
13
III.A.1.b)
Citizenship
14
III.A.2
APAs Suffered as Second Class Aliens
15
III.A.3
We Imprisoned More than 110,000
Japanese Americans During WW II
15
III.B The Model Minority Myth
17
III.B.1
The Model Minority Myth Is Misleading
17
III.B.2
APA “Success” Has Non-Racist Explanations
17
III.B.3
The Model Minority Myth Is Dangerous
18
iii
III.C APAs Still Suffer Racial Discrimination: The Present
III.C.1
Stereotypes Plague APAs
19
III.C.2
APAs Suffer from Employment Discrimination
20
III.C.2.a)
The Parity Concept Introduced
20
III.C.2.b)
APAs Are Under-Parity or Would Be
but for Affirmative Action
20
Parity Obscures Discrimination Against APAs
21
III.C.2.c)
III.C.3
APAs Are Victims of Racial Violence
22
III.D Admission Ceilings: The Problem of Negative Action
23
III.D.1
III.D.2
IV
19
APAs Can Be Treated with Affirmative Action,
Neutral Action, and Negative Action
23
We Can Simultaneously Reject Negative Action
and Embrace Affirmative Action
24
CONCLUSION
25
HOW TO USE THIS DOCUMENT
28
ACKNOWLEDGEMENTS & NOTES
29
BIOGRAPHICAL INFORMATION
30
ENDNOTES
31
iv
E XECUTIVE SUMMARY
[1]
In this policy analysis of affirmative action, four Asian Pacific American law
professors make the case for affirmative action, with a special focus on Asian
Pacific Americans (“APAs”). The authors believe that affirmative action produces many benefits, such as reducing the harm of racism, promoting equal opportunity, and advancing racial justice. While affirmative action has costs,
many of them are misconceived or exaggerated. Those genuine costs that do
exist are ones that all Americans should bear in order to move America toward a
more just society.
[2]
This document has two target audiences. The first audience consists of APAs,
whether activists, political leaders, academics, ethnic media, or interested members of the community. Like all Americans, APAs are trying to understand the
frequently frustrating and always pitched debate over affirmative action and
civil rights. In this analysis, the authors tackle
the genuine complexity confronting APAs and
explain why support for affirmative action may
mark a defining moment for APA identity.
[3]
The second audience consists of the general public. In this regard, the authors want to present
APA perspectives on affirmative action. Recently,
APAs have become increasingly visible in the
political sphere and perhaps nowhere as prominently as in the debate over affirmative action.
But this visibility has been passive, with APAs being used to make debating points, especially by
opponents of affirmative action. This policy
analysis strives to convert that passive visibility
into active participation. By adding distinct
APA voices to the policy debate, we hope to address better the complexities of race relations
and, in turn, strengthen the arguments for affirmative action.
. . .support for
affirmative action
may mark a defining
moment for Asian
Pacific American
identity.
[4]
We begin in Part I with a brief introduction to the current affirmative action conflict and the urgent need for APA involvement in the public policy debate.
[5]
Part II presents the general arguments for affirmative action. Section A states
the case for race-conscious remedies in a society afflicted with racial discrimination. Sections B and C respond to two standard counter-arguments, that affirmative action violates the abstract principles of meritocracy and color-blindness.
[6]
Part III focuses specifically on APAs, their history of racial discrimination and
their relationship to affirmative action. Section A documents the history of explicit institutional racism against APAs that, until recently, remained both law
and practice. Section B examines the model minority myth of APAs and ex-
v
poses its inaccuracies and dangers. Section C details the current discrimination
against APAs, which persists despite perceptions of utter assimilation and success. Finally, Section D addresses college admissions, an area of special concern
for APA communities. In particular, it refutes the claim that affirmative action
for African Americans, Latina/os, and Native Americans means that APAs
must be capped by admission ceilings.
[7]
Part IV provides concluding thoughts and explains how APAs have a unique
opportunity to defend affirmative action in a way that challenges both conservative cries of the APA “victim” and liberal neglect of APA communities. How
APAs react to the onslaught against affirmative action presents a defining moment for APA history and identity. By standing up for affirmative action—regardless of whether APAs are always included—we can show loyalty to principles, not self-interest, and a genuine commitment to a community of justice.
vi
I. Introduction
[1]
Affirmative action is under severe attack.1 In California, the Regents of the
University of California voted to end affirmative action in admissions, employment, and contracting.2 In November 1996, the so-called “California Civil
Rights Initiative” (Proposition 209) would do the same for the entire state.3 On
the federal level, various bills are circulating in Congress to end affirmative action as we know it.4
[2]
The fate of Asian Pacific Americans (“APAs”)
has become central to this attack. Opponents
insist that they object to affirmative action because it is unfair. They highlight how preferential treatment of others may disadvantage
APAs, a racial minority. In doing so, they claim
the moral high ground: They seek to protect
not only the rights of White males, but also
APAs. A provocative argument, this warrants
reflection and analysis.
Asian Pacific
Americans must
stand up for
affirmative action,
[3]
whether or not we
Any thoughtful inquiry must begin with the
historical experience and contemporary status
are directly included
of APAs. The exclusion of Asian immigrants
in such programs.
from the United States and the segregation of
APAs from mainstream society have meant
that many Americans know little about APAs.
As lamentably, because many (though not all)
APAs are immigrants and because history is
not always taught well in our public schools,
many APAs know little about the sorry history of U.S. race relations. What we
need, therefore, is education, discussion, and deliberation. 5
[4]
To help meet this need, four APA law professors—Gabriel Chin of Western New
England, Sumi Cho of DePaul, Jerry Kang of UCLA, and Frank Wu of Howard6—
gathered in Los Angeles in May 1996 to begin a serious discussion of affirmative
action. Representing diverse ethnic backgrounds, political viewpoints, and
scholarly methods, we struggled with the many troubling issues raised by racial
discrimination and its remedy.
[5]
In particular, we were concerned about how opponents of affirmative action
have framed the debate—in terms of “quotas,” “reverse discrimination,” and
the “APA victim.” We were also dissatisfied with the dearth of serious public
policy analysis from APA perspectives. APAs are one of the fastest growing racial groups in the country, with more than nine million individuals constituting
approximately three percent of the population. Introducing them into the affir-
1
mative action debate not only recognizes this presence but also illuminates the
complex nature of racial discrimination from new viewpoints.
[6]
2
APAs have come to occupy a unique place in the post-civil rights era. We have
experienced racial discrimination, yet we also have enjoyed some upward mobility. We are racial minorities, yet we are also the “model” minority, portrayed
at times as “honorary Whites.” Placed in this unique position, many APAs are
understandably confused about affirmative action. For the reasons explained in
the following pages, each author has concluded that APAs must stand up for affirmative action, whether or not we are directly included in such programs.
Each of us also believes that APAs can play an invaluable role in society’s
progress toward a community of justice that transcends self-interest. This is our
case.
II. Affirmative Action: The General Debate
II.A.
II.A.1.
The Case for Affirmative Action
Affirmative Action Remedies Racial Discrimination
[1]
White Supremacy stands for the proposition that people of color are somehow
different and inferior; therefore, they do not belong as equals in the cultural, social, and political company of Whites.7 This belief, unfortunately ingrained in
American history, has had enormous consequences for all people of color.
White Supremacy as a latent belief is widespread; as an explicit ideology, it is reemerging in separatist militia groups as well as on the New York Times bestseller
lists.8
[2]
A track race metaphor, invoked by the late President Lyndon Johnson in his historic affirmative action address, provides insight into racism’s harm. Living in
an unabashedly racist society meant that many of our parents, grandparents,
and great-grandparents were not allowed to run a fair race. Racism raised high
hurdles making it impossible for otherwise “equal” runners to compete. Thus,
when they passed the baton to the next generation, they did so running with
less speed, having covered a shorter distance, and having less stamina than they
would have had in a non-racist society.
[3]
Accordingly, for many people of color, racism has decreased the amount and
value of economic, social, and cultural capital inherited from our ancestors. Not
only did we receive less material wealth, we also received less “insider knowledge” and fewer social contacts so instrumental to one’s educational and professional advancement. The fact that runners today might compete on more
equal “footing” does nothing to change this fact.
[4]
As one concrete example, consider the legacy of racial discrimination by the
Federal Housing Administration (“FHA”). The 1934 Federal Housing Act made
purchases of homes possible for millions of Americans. But the FHA was not
colorblind. It believed that non-White families would decrease property values
in White neighborhoods9 and thus “channeled almost all of the loan money toward whites and away from communities of color.”10 As such, between 1946
and 1959, less than 2 percent of all houses financed with FHA backing were purchased by African Americans.11 This not only cemented racial segregation, it
also ensured that Whites would be disproportionately advantaged by post-war
suburban home ownership, “one of the most successful generators of wealth in
American history.”12
[5]
This sort of unfairness, compounded generation after generation, has left racial
minority groups with less wealth, fewer social services, and cultural resources
than they would have had otherwise.13 And as President Johnson put it: “You
do not take a person hobbled by chains and liberate him, bring him up to the
3
starting line of a race and then say, ‘you are free to compete with all the others,’
and still justly believe that you have been completely fair.” 14
[6]
Racism coursing through the generations has also carved derogatory stereotypes into the bedrock of American culture. While different for each race and fluid
over time and locale, these stereotypes have variously portrayed us as stupid,
lazy, ineloquent; uncouth, violent, bestial; immoral, evil, irredeemable; dishonest, unfair, sneaky.15 Although most Americans publicly reject these racist generalizations, none of us, whatever our race, can claim complete immunity to stereotypical thinking.16 Furthermore, prejudice can work its way into social institutions and cultural practices in ways difficult
to notice, much less root out. It should therefore
come as no surprise to find discrimination—from
the most virulent antipathy, to willful ignorance,
to selective indifference—in all walks of life.
[7]
In a startling example, ABC’s “PrimeTime Live”
news magazine recently used two professionally trained “testers”—one Black, one White—
to see whether “equality of opportunity” exists.
The two men, trained to be identical in all relevant aspects save race, exposed a disturbing
pattern of racism throughout their two-week
experiment. While the White man was greeted
warmly and encouraged at an employment
agency, the African American tester was lectured
on laziness and drug use. In a record store, the
White tester was left alone to browse while the
Black man was tailed by an employee fearful of
shoplifting. An apartment building manager
gave the White tester keys to a rental while the
African American tester was told by the same
manager that all apartments had already been
rented.17
“You do not take a
person hobbled by
chains and liberate
him, bring him up to
the starting line of a
race and then say,
‘you are free to
compete with all
the others’.”
Lyndon B. Johnson
[8]
One might suppose that anti-discrimination laws,
passed during the Civil Rights Era, would have put an end to all this racism.
But they have not, in part because these laws are especially difficult to enforce:
A “smoking gun” is rarely found because naked prejudice is kept safely hidden.
Also, anti-discrimination laws require victims of racial discrimination to face
protracted litigation, using personal and societal resources, to reach only uncertain end.
[9]
Instead of resigning ourselves to under-enforcement of anti-discrimination
laws, we can support affirmative action. By “affirmative action,” we refer to a
broad array of race-, ethnicity-, and gender-conscious programs, enacted by the
government and private sector, voluntarily or by court order, to promote equality of opportunity and racial diversity. It includes outreach programs, targeted
at specific groups, to notify them of employment, education, and contracting
opportunities. It also includes programs that favor—among similar candidates
who satisfy necessary qualifications—members of historically underrepresented
4
groups. These programs act as a small counterweight to the various discriminations—sometimes purposeful, sometimes negligent—that people of color face
daily, throughout their lives. They provide a rough and meager remedy for the
felt impact of such unfair treatment, which for some reach back for generations.
[10] Those who believe that the recompense is too large should ask themselves these
questions. First, even if you are individually innocent of any racial discrimination, do you still enjoy its illicit fruits? After all, discrimination (by others) has
shrunk your pool of competitors for admissions, public contracting, and jobs.18
Second, for White Americans, 19 would you, if given the chance, voluntarily give
up Whiteness, become a person of color, accept all the injustices associated
therewith, in exchange for the chance to participate in the piecemeal remedy of
affirmative action programs? One might put the same question to APAs. Would
you accept the racism faced by Americans who are Black, Latina/o, or Native
American, in exchange for affirmative action programs meant for their benefit?
II.A.2. Affirmative Action Creates a Better America
[1]
Besides counteracting racism, affirmative action moves us toward a more just
society that benefits all Americans. It does so by increasing social interaction
among people of different races, cultures, and backgrounds. Increased contact
in the school and workplace, among diverse people interacting with basic respect and common goals, is essential, especially in a world where “hypersegregation”20 persists.
[2]
For instance, consider how affirmative action operates in the university. Affirmative action allows students of different races and backgrounds to rub shoulders, share meals, debate issues in an open-minded, intellectual community
where learning takes place not only within the lecture hall, but without, not
only from books, but from classmates. It “allows for social interaction in an otherwise [racially] segregated world, which in turn allows us to break down our
misconceptions and prejudices.”21 To be sure, there are campuses where students feel comfortable sticking only to their own “kind.” And without question, more could be done to encourage personal interaction across various social
cliques. But the mere fact that more could be done in no way denies the tangible
benefits already produced by affirmative action.
[3]
Affirmative action also moderates outdated stereotypes by helping racial minorities achieve non-stereotypical positions of leadership and status.22 Seeing
people of color in such unexpected positions—an APA as law professor, not engineer—jars all of us, regardless of race, out of old habits of thought and expectation.
[4]
Besides decreasing racial stereotypes, affirmative action produces other benefits. In the classroom, it increases the variety of life experiences, which in turn
enlivens discussion and deepens analysis. This assertion is not based on any
simplistic assumptions that all minorities do think or should think alike.
Rather, as explained by Assistant Attorney General Walter Dellinger, it is based
on the “common sense proposition that in the aggregate, increasing the diversity of the student body is bound to make a difference in the array of perspectives communicated at a university.”23 The same is true for faculty. Race continues to matter in real life, especially for racial minorities, and it is this experience
5
that teaches valuable lessons about race, racism, and race relations in contemporary America.24
[5]
Affirmative action also produces benefits outside of educational settings. In
today’s workplace, racially diverse co-workers chat at the water cooler. Earlier,
they did not. Even if they are squabbling with each
other, they are at least talking to each other, face to
face. Informal interactions like this, perfectly harmonious or not, enable us to see each other as fellow human beings, with common fears, faults, and aspiraA society
tions.
[6]
Affirmative action not only improves workplaces by
furthering interaction and understanding, it also improves the work product or quality of services. Consider the value of a diversified police force. In the
ideal world, the racial diversity of a law enforcement
agency would have no bearing on maintaining peace
and public safety. But in the real world, especially
when the relationship between police and the community they serve is adversarial, racially diversifying the
ranks may bolster law enforcement’s effectiveness.
plagued by
tremendous
distributive
inequities along
racial lines is not
only unjust, but
unstable.
[7]
Some argue that such diversification caters to racist
preferences. Crediting community preferences for a
diversified police force is no different, they insist,
from a restaurant refusing to hire an African American hostess because the clientele would prefer being greeted by a White person.
This argument fundamentally mistakes racism. In particular, it ignores morally
significant differences in the origin and social meaning of these preferences.
[8]
Inner-city communities, with a lengthy history of police abuse, might prefer a
police force more reflective of the community’s racial make-up because such a
force, on the whole, will be less likely to wield its power in racist ways. Moreover, the social meaning of an integrated police force is not that Whites are
members of a degraded caste, unworthy of equal treatment. By contrast, the
preference for a White restaurant hostess arises from less noble or reasonable
origins and, more importantly, broadcasts to racial minorities the clear message
that they are less than equal.25 It is downright bizarre to think that we, as a society, lack the common sense to distinguish between such polar opposites.
[9]
Finally, affirmative action is a good investment in a stable future. A society
plagued by tremendous distributive inequities along racial lines is not only unjust, but unstable. Consider pre-apartheid South Africa, or more close to home,
the Los Angeles riots of 1992, which erupted in the context of epidemic unemployment and social despair.26 Affirmative action helps alleviate some of this
distributive imbalance.
[10] Admittedly, it does not do so by directly reaching those racial minorities at the
lowest rungs of society. Ideally, this is a task for aggressive anti-poverty programs or possibly complementary class-based preferences. Still, race-based affirmative action helps ameliorate this imbalance by advancing the prospects of
6
minority students, workers, and entrepreneurs. In turn, they function as role
models,27 increasing the self-esteem of individuals who identify with them, and
contributing valuable economic and cultural resources back to their communities. Seeing a steady stream of individuals who “make it,” notwithstanding
their race, keeps hope alive that any American may achieve success. Affirmative action is an effort to translate this hope into reality and not to abandon it as
a “dream deferred.”
II.A.3.
[1]
[2]
The Costs of Affirmative Action Are Acceptable
We concede that there are costs, at times painful ones, to affirmative action. For
instance, some marginal candidates will lose out to those helped by affirmative
action. And this might seem particularly unfair, especially if the person who
loses out feels no responsibility for racism, past or present. But as Professor
Stanley Fish argues:
[I]f today’s white males do not deserve the (statistically negligible)
disadvantages they suffer, neither do they deserve to be the beneficiaries
of the sufferings inflicted for generations on others; they didn’t earn the
privileges they now enjoy by birth, and any unfairness they experience
is less than the unfairness that smoothes their life path irrespective of
their merit.28
[3]
Also, other candidates who would have lost out even without affirmative action will find it easier to blame “reverse discrimination” than themselves. For
instance, consider the story of Tom Wood, co-author of the so-called “California
Civil Rights Initiative,” which would terminate race-conscious remedies in the
State of California. He has repeatedly asserted being the victim of “reverse discrimination” when, allegedly, a woman of color took the teaching job he deserved.29 When pressed for details so that the story could be verified, Wood
steadfastly declined.
[4]
An NBC “Dateline” investigation, however, turned up the following facts.
First, “Tom Wood hadn’t published anything until 15 years after he received his
Ph.D.”30 Second, “in the 20 years since that Ph.D., Wood ha[d] held only two
university teaching positions, each one-year appointments.” 31 Third, of the five
teaching positions Wood could have applied for, four were filled by White
males and one to a “woman who was, by almost any standard, more qualified
for the position than Tom Wood.”32
[5]
In other words, affirmative action allows the scapegoating of minorities. It also
allows well-intentioned employers who want to break bad news gently to identify affirmative action as the culprit instead of the candidate’s own lackluster
qualifications. This “racial fall guy,” in turn, fuels White resentment and marks
successful racial minorities as successful only because of affirmative action.
[6]
Finally, there are concerns that affirmative action will simply be inefficient. The
fear is that we will not have the best qualified performing society’s tasks, and
thus, we will lose productivity and face higher labor costs. But this fear assumes that people of color and women benefiting from affirmative action are
7
less qualified and that the definition of “best qualified” is incontestable. But are
these assumptions correct? We answer that question next.
II.B.
[1]
The Merit Critique Is Muddy
Critics of affirmative action charge that taking race into account compromises
our commitment to merit. Obviously, some measures of merit are relevant;
however, critics are mistaken when they assert that merit is simple to understand and apply. They are also off the mark when they contend that racial diversity and merit cannot co-exist.
II.B.1. Merit Comes in Many Forms
[1]
A catchy buzzword, merit is more easily invoked than defined. Without attempting an authoritative definition, we can start with the definition of merit as
“the ability to contribute to the achievement of valid institutional goals.”33 Immediately, we see that no conception of merit is universal because different institutions will have different goals. For example, the Olympic Ski Team would
certainly define merit differently than would, say, the Foreign Service of the
State Department, although both organizations seek excellence.
[2]
Diverse ideas of merit exist even in more similar institutions. For example, a
law school like Stanford, seeking a national student body, would define merit
differently in some ways than would, say, the University of Montana, which
might aim to build the state bar by recruiting in-state students likely to stay in
Montana. And though both are state-sponsored schools, CUNY’s (City University of New York) focus on public interest law might make it value different
qualities in prospective students than the University of Montana, though both
want to produce excellent lawyers. In sum, the very notion of merit turns fundamentally on the goals and purposes of a particular institution.
II.B.2. Merit in the University
[1]
Many opponents of affirmative action have framed the debate as “affirmative
action” versus “merit.” They argue that affirmative action necessarily undermines merit, thereby harming all social institutions, particularly our colleges
and universities. We find this argument simplistic.
II.B.2.a) Academic Standards Have Risen During the Affirmative Action Era
[1]
In fact, the advent of affirmative action has occurred simultaneously with an
impressive rise in academic standards at elite universities. As Chancellor ChangLin Tien has explained: “The numbers dispel the notion that diversity has somehow sacrificed the quality of [Berkeley]. In fact, the diversity has been coupled
with rising standards.”34 Admissions officials across the nation, from Berkeley
to Harvard, agree.35
[2]
The social forces that have improved the quality of the student body parallel
those underlying affirmative action—the long-term pressure in higher education
to open its doors to groups formerly excluded, such as racial minorities and
women. Around World War II, universities began to make token exceptions to
their admission policies, which had until then restricted the pool of potential
students to the well-heeled, well-bred graduates of particular preparatory
schools, and those of the “right” race, religion, and gender.36
8
[3]
Significant gains in women and minority admissions did not occur until the
1960s, however, and only in the wake of intense pressure from the Civil Rights
Movement. Affirmative action was reluctantly accepted by elite schools such as
Harvard as the “bitter pill” necessary to stave off social upheaval and political
instability. Prior to this time, Harvard University had excluded qualified
women and racial minorities for 328 of its 358 year existence.37 This preference
for White Protestant men hardly served the lofty goals of “merit,” but rather
sustained mediocrity for the privileged. Individual merit became a central concern when the
qualifications of the “privileged” began to be
questioned.38
II.B.2.b)
[1]
[2]
Measuring Academic Ability Is Hard
Affirmative action supposedly compromises
merit because it admits students of color based
on factors other than grade point average (“GPA”)
and standardized test scores. Schools rely on numerical criteria as one set of factors in admissions
because they are somewhat helpful, though by no
means perfect, in predicting future academic performance.39
In fact,
the advent of
affirmative action
has occurred
simultaneously
with an
impressive rise in
But for any particular individual, test scores may
academic
be quite misleading. Indeed, because schools
weight GPAs and test scores and use scales of
standards at elite
comparison for preparatory institution and
course work, APAs can easily be disadvantaged
universities.
by the manipulation of seemingly neutral factors.
APAs, for example, would be disadvantaged if a
university gave greater weight to the verbal portion of the SAT exam or no credit for non-European foreign language skills. Since universities
have historically done exactly this to APAs, we should be skeptical about claims
that academic merit is a scientifically measurable characteristic that can be
gauged objectively.
II.B.2.c)
Grades and Test Scores Are Not Everything
[1]
More importantly, no sensible admissions officer would pretend that grades
and scores are the only components of merit. Reducing an individual’s accomplishments and potential to a number would compel schools to ignore, say,
demonstrated leadership, scholarly publications, motivation, maturity, and the
use to which an education will be put, including service to neglected communities. In short, many qualifications not reflected by standardized test scores or
grades may indicate that a person would be a valued member of a school community and a successful graduate.
[2]
Indeed, many professional school faculty will concede that doing well in school
does not ensure doing well in the profession. There are countless stories of
“C-” students from non-elite law schools becoming world-renowned attorneys.
Conversely, there are countless “A” law students who fail miserably in the day-
9
to-day practice of law. Recognizing this less simplistic view of merit benefits
not only people of color, but everyone who can contribute to one of the school’s
or the profession’s various goals.
[3]
Furthermore, a school might reasonably adopt an affirmative action plan based
on the conclusion that, in some circumstances, race can be a component of merit.
Many schools, for example, admit students whom they hope will become civic
and community leaders. For better or worse, these communities are sometimes
racially defined. A school wholly blind to race, however, would be unable to
consider the fact that certain applicants may become political, spiritual, and artistic leaders of such communities. Not only would such a school be deprived of
having such a person as an alumna, but that applicant would have been treated
unfairly. Refusing to consider the potential suggested by an applicant’s leadership
skills and background would foreclose full evaluation of her merit.
[4]
While many concede the force of this argument, they still feel uneasy about considering race as a part of merit. After all, race is not something one “earns.” But
remember, schools routinely look at characteristics
that do not arise from individual initiative. Applicants blessed with extraordinary athletic or artistic
abilities receive special consideration even when
these abilities arise more from natural talents than
[R]educing racial
individual toil. Applicants with novel backgrounds —such as being raised on military bases or
prejudice, increasing
diplomatic missions around the globe—may propracial harmony, and
erly be favored regardless of whether those applicants had any say in the matter of where they lived
avoiding the
and grew up. Accordingly, people should feel more
resegregation of
at ease with expanding the notion of merit to include, at times, membership in a distinct social
higher education . . .
group.40
II.B.3. Our Commitment to “Merit” Is Fickle
are more weighty
than many other ends
[1]
Finally, note how those ardently committed to an
unreflective merit principle (“merit equals objecfor which the usual
tive test scores and grades”) ignore curious excepmerit principle is
tions without outcry. Admissions committees, for
example, will take into account an applicant’s
sacrificed.
“legacy” status—having an alumni relative—even
though that fact is irrelevant to personal achievement or academic promise.41 While having rich or
politically powerful parents hardly makes an applicant smarter, a person in that fortunate position
can often expect preferential treatment of his admissions application. 42
[2]
This is not the case solely at elite private schools, such as Harvard, to which
more students were admitted one year under the legacy preference than the total number of African Americans, Mexican Americans, Puerto Ricans, and Native Americans in the entire class.43 It is also the practice of our public institutions. For example, the University of California’s lobbyist in Sacramento helped
10
children of the powerful:44 Both UCLA45 and Berkeley46 had secret but established “back channels” to aid privileged applicants.
[3]
But the exceptions do not end there. Consider nepotism—preferential treatment on the basis of a biological happenstance—which is perfectly legal in private-sector hiring. Or what about the substantial numerical boosts granted to
the scores of veterans on civil service exams, regardless of whether they actually
participated in combat, suffered emotional or physical injury, or are socially or
economically disadvantaged?47 These exceptions should make us question our
commitment to some unexamined merit principle.
[4]
In sum, the choice is not between “merit” and “affirmative action.” More accurately, the choice is between different conceptions of merit or between competing visions of an institution. If taking race into account seems to compromise
accustomed notions of merit, we must recognize that the ends achieved—reducing
racial prejudice, increasing racial harmony, and avoiding the resegregation of
higher education—are more weighty than many other ends for which the usual
merit principle is sacrificed. We must also acknowledge that “conventional”
notions of merit may simply mismeasure merit for universities that have less
self-interested and more social-minded goals than simply mass-producing the
most test-savvy and clever graduates.
II.C.
II.C.1.
Race-Consciousness Is Not Racism
Color-Blindness Is Not Morally Mandated
[1]
In opposing affirmative action, many Americans appeal not only to an abstract
merit principle, but also to a rigid color-blindness principle. They simply feel
that race is morally irrelevant and should never be used in any way. To this appeal, we ask: Why precisely is race-consciousness so taboo?
[2]
Surely, in the past, race-consciousness was used to perpetuate an unjust caste
system, such as slavery. But that has not always been the intent, effect, and
meaning of race-conscious programs. For instance, after the Civil War, Congress established the Freedmen’s Bureau to help recently freed slaves integrate
into society.48 There, government took an expressly race-conscious measure to
remedy a serious social problem. To suggest that the race-consciousness of chattel
slavery and that of the Freedmen’s Bureau is identical is deeply mistaken.
[3]
First, each program had a different intent. Slavery was intended to subordinate
a whole class of human beings into an inhuman status. By contrast, the Freedman’s
Bureau was intended to help liberate that class. For those who think that intent
is irrelevant, consider our opposite reactions to killing-for-hire and killing-forself-defense.49 Both involve killing, but the intent differs, which makes all the difference.
[4]
Second, regardless of intent, each program had a different impact. The concrete
impact of slavery and Jim Crow was the political, cultural, and economic subjugation of an entire class of Americans. By contrast, programs like the Freedmen’s
Bureau did nothing to disenfranchise Whites, stigmatize them, or relegate them
to a disfavored caste.
11
[5]
Third, each program had a profoundly different social meaning. In moral terms,
the meaning of Jim Crow was to deny racial minorities the most basic respect as
an equal. In contrast, the meaning of the Freedmen’s Bureau was not to deny
equal respect to those Americans excluded from such programs. Today, the exact same contrast in intent, impact, and meaning can be made between old-style
discrimination on the one hand and affirmative action on the other.
[6]
Still, while conceding some distinction between Jim Crow and affirmative action,
opponents of affirmative action argue that it is too difficult to distinguish between malign and benign race-based policies. They contend that it is wiser to
be like Ulysses and bind ourselves to the mast to stave off the Sirens of race-consciousness. But this approach, alluringly heroic, ignores significant costs—
namely, apathy toward continuing racism.
II.C.2. Color-Blindness Is Gratuitous in an Era of Judicial Retrenchment
[1]
The Supreme Court recently decided in Adarand v. Pena50 that race-conscious
decisions, whether apparently malign or benign, must be evaluated under a notoriously difficult standard known as “strict scrutiny.” In other words, affirmative action programs can be implemented only if the institution demonstrates a
compelling interest, such as the elimination of the present effects of past racial
discrimination by the institution itself or educational diversity.51 Furthermore,
the institution must show that the use of racial classifications is narrowly tailored to that compelling interest.
[2]
Each of us disagrees with the holding in Adarand.52 In particular, we disavow
how the court used the Japanese American internment to justify its conclusion.53
We also do not believe that the only valid arguments justifying affirmative action are those that the Court has identified as “compelling.” Nevertheless, as
controlling Supreme Court precedent, Adarand substantially restricts the type of
affirmative action programs that can continue to exist.
[3]
Despite this aggressive constitutional check against race-conscious remedies already in place, opponents of affirmative action would prohibit even those few
affirmative action programs that would satisfy this most strict scrutiny. In other
words, they would bar even a program narrowly tailored to a genuinely compelling interest, one that would move us toward a more just society. Such draconian measures smack of stingy self-interest. It is overkill.
12
III.
Affirmative Action & Asian Pacific Americans
III.A.
[1]
APAs Have Suffered Racial Discrimination: The Past
To the extent that affirmative action responds to racial discrimination, we need
a better picture of the racial injustice that Asian Pacific Americans (“APAs”)
have endured. While this section aims to explore the history of many APA experiences, it is not meant to be exhaustive. Rather, it is a more modest attempt to
offer background that will illuminate the nature of discrimination against
APAs.
III.A.1. The Law Explicitly Discriminated Against Asian Immigrants
III.A.1.a)
Immigration
[1]
While color-blindness is in political vogue among some contemporary circles,
that was not the case in the nineteenth century, when the first Asians arrived in
the United States in substantial numbers.54 As Chinese laborers arrived in Hawaii and California to work in farms and mines, White labor resentment against
a “Yellow” invasion of “coolie” labor quickly mounted. America soon began
erecting a wall around its borders that was distinctly color-conscious.
[2]
In 1882, Congress passed the Chinese Exclusion Act, 55 the first major federal immigration law and also the first law ever to institute a racial restriction on immigration.56 As Chinese immigration slowed, Japanese immigration increased to
satisfy the need of American businesses for cheap labor. But in 1907 and 1908,
under significant pressure from the Western States, President Theodore Roosevelt
extracted the Gentlemen’s Agreement from Japan to stop issuing passports to
laborers. As immigration from other Asian countries commenced, in 1917, Congress responded by enacting the Asiatic Barred Zone, which excluded most immigrants from an area encompassing India, Southeast Asia, and the Pacific Islands. The advocates for this legislation, along with members of Congress and
the Justices of the Supreme Court who later reviewed the laws, explicitly stated
race-based reasons to prevent Asians from coming to America.
[3]
In 1924, Congress took a more drastic step and barred all “aliens ineligible for
citizenship” from coming to the United States.57 Since only Whites and persons
of African descent (the latter only due to a post-Civil War amendment to the
original statute) were eligible for citizenship, this law effectively barred entry of
all Asians. Significantly, however, the law accomplished its racial effect without
explicitly mentioning race, using instead the code phrase “aliens ineligible for
citizenship.”58
[4]
Only in 1952, by passing the McCarran-Walter Act, did Congress more or less
erase the color bar from our immigration laws. But even the McCarran-Walter
Act was not racially neutral. Although it ended the Asiatic Barred Zone, the Act
replaced it with an Asia-Pacific Triangle. Immigration of persons indigenous to
13
this Triangle was capped annually to a mere 2,000-person upper ceiling. Under
this limitation, a person of Chinese descent—even if he was a native resident
and citizen of a Western nation—would be counted toward the 2,000-person
limit. This racial attribution rule applied exclusively to Asians. Not until the
comprehensive 1965 reform of our immigration laws could it be said that
America had stopped explicit racial discrimination against Asians. 59
[5]
Discriminatory immigration laws obviously limited the numbers of Asians who
could arrive in this country. But they also affected Asian immigrants and their
citizen children already here: They sent an unmistakably hostile message not
only to Asians in Asia, but to APAs already in the United States that they did not
belong to America.60
III.A.1.b) Citizenship
[1]
To be an American, an individual must be allowed not only to come to this
nation’s shores but also to become a citizen. Much as the law forbade most
Asian immigrants from arriving, it prevented Asian immigrants who had already arrived from ever becoming citizens.
[2]
The first naturalization law, passed in 1790, restricted naturalization to “free
White persons.” This was amended in 1870,
after the Civil War, to include persons of
African descent. Since Asian immigrants
were deemed to be neither White nor of African descent, they could not become citizens. In numerous cases, culminating in a
All Americans should
pair of Supreme Court decisions in the 1920s,
be shocked to learn
judges repeatedly recognized that Asian applicants for naturalization were qualified in
that naturalization
every respect but one: They were not White.61
[3]
All Americans should be shocked to learn
that naturalization rights were granted to
Asians only in the mid-twentieth century:
in 1943 for Chinese, 1946 for Asian Indians
and Filipinos, and 1952 for all other Asians.
Thus, only a half century ago, America considered Asian immigrants so debased as to
be barred from the fold of citizenship.62
[4]
14
rights were granted
to Asians only in the
mid-twentieth century:
in 1943 for Chinese,
1946 for Asian Indians
and Filipinos, and 1952
The Fourteenth Amendment to the Constifor all other Asians.
tution, ratified in 1868, confirmed that there
was another path to citizenship—birth on
American soil. Despite the express language
of the Fourteenth Amendment,63 the question whether Asians born in America would
be American citizens was decidedly controversial.64 Not until 1898 did the Supreme Court resolve this issue in favor of
Asians in United States v. Wong Kim Ark.65 But as recently as 1942, this principle
of citizenship was formally challenged in federal court in an attempt to strike all
individuals of Japanese ancestry born in the U.S. from the voter rolls.66
[5]
Worse yet, ominous calls to eliminate the citizenship clause of the Fourteenth
Amendment have been heard in the Capitol.67 Indeed, the Republican party
platform calls for amendment of the U.S. Constitution to deny citizenship to
children born in America to undocumented aliens.68 Assistant Attorney General
Dellinger has warned that this would create “a permanent caste of aliens, generation after generation, born in America but never to be among its citizens.” 69
III.A.2. APAs Suffered as Second Class Aliens
[1]
Until only a generation ago, APAs were treated as distinctly second class aliens
(one cannot properly say “citizens”). Unable to naturalize, they were politically
disenfranchised and barred from participatory politics. Subject to widespread
prejudice, they were often the target of racially-motivated violence, especially
in uncertain economic times.70 By one count, there were over three hundred
documented murders of Chinese as a result of racial violence in the West between 1860 and 1887. 71
[2]
At various times and places, APAs were denied social and civil rights that
would have signaled respect as equals.72 They could not live next to Whites.
They could not marry Whites.73 They could not learn alongside Whites.74 APAs
could not testify against Whites in a court of law, making it difficult if not impossible to enforce the few rights they possessed.75
[3]
In addition, APAs suffered widespread de jure and de facto discrimination in
their attempt to work for a living. California enacted a Miner ’s Tax in 1852 specifically targeting Chinese miners. San Francisco manipulated its licensing authority to close Chinese laundries while allowing White laundries to remain
open.76 Even in the middle of this century, California barred alien Japanese (remember, Japanese immigrants could not naturalize) from fishing in state waters. 77 What was left for APAs, then, were second-rate business and service-oriented employment opportunities, consigning them to become launderers, gardeners, house boys, and maids.
[4]
Finally, APAs faced large-scale economic disenfranchisement through the alien
land laws. Threatened by increased Asian competition in farming, various states
forbid “aliens ineligible for citizenship” (the code phrase for Asians) from owning land. The first alien land law was passed in the State of Washington in 1886.
California passed its alien land law in 1913. Upon judicial challenge, the Supreme Court approved these laws in a series of cases in 192378 on the theory that
there was no racial or alienage discrimination and that the State has the right to
limit property ownership to citizens. Only after the Supreme Court signaled
ambivalence toward these decisions, perhaps regretting its approval of the
Japanese American internment during World War II,79 did the California Supreme Court strike down its alien land law as unconstitutional in 1952.80
III.A.3. We Imprisoned More than 110,000 Japanese Americans During WW II
[1]
The internment of Japanese Americans has been acknowledged by the President, Congress, and, most recently, the Supreme Court as a shameful episode in
our nation’s history.81 If people know of only one incident of racial discrimination against APAs, internment is likely to be it. Internment is important because
it reveals much about the nature of persistent anti-Asian prejudice.
15
[2]
The bombing of Pearl Harbor on December 7, 1941, set in motion the eventual
internment of over 110,000 persons of Japanese descent without due process.
Over two-thirds were American citizens. 82 Society generally assumed, as did
General DeWitt, head of the Western Defense Command, that all Japanese
Americans were incorrigibly foreign, with dangerous loyalties to Japan. DeWitt
testified: “A Jap’s a Jap. . . . It makes no difference whether he is an American;
theoretically he is still a Japanese and you can’t change him. . . . You can’t
change him by giving him a piece of paper.” 83
[3]
Accordingly, society would not distinguish between the enemy Japan and Americans who happened to be of Japanese descent. By contrast, society had little difficulty distinguishing German Americans and Italian Americans from the enemy states Germany and Italy. Neither group of European Americans was subject to blanket removal from their homes and imprisonment in internment camps.
[4]
The Supreme Court affirmed the constitutionality of the curfew and exclusion
orders imposed on persons of Japanese descent in 1943 and 1944. In the wellknown Korematsu case, the Court introduced the notion that “all legal restrictions
which curtail the civil rights of any single racial group are immediately suspect.”84 Despite this pronouncement, the Court rubber-stamped the government’s
unsubstantiated claims of military necessity, even in the face of readily-available evidence of stereotyping and anti-Japanese racism.
[5]
Perhaps the Court’s misstep was caused by the government’s purposeful suppression of evidence from the Office of Naval Intelligence, Federal Bureau of Investigation, and Federal Communications Commission, all of which exculpated
the Japanese Americans.85 On the other hand, even without such evidence, Justice Murphy knew enough to dissent vociferously in Korematsu, which he denounced as a fall into “the ugly abyss of racism.”86 The governmental misconduct in suppressing evidence led a federal court nearly a half-century later to
vacate the conviction of Korematsu himself, though the Korematsu decision itself remains unaffected.87
[6]
In 1982, a Commission charged by Congress to study the internment concluded
that the “broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership,” 88 not any genuine military necessity. In other words, it was a tragic wartime mistake. But as historian
Roger Daniels has cautioned:
[7]
[8]
16
[T]he general tendency of educated Americans . . . to write the
evacuation off as a ‘wartime mistake’ is to obscure its true significance.
Rather than a mistake . . . the legal atrocity which was committed against
Japanese Americans was the logical outgrowth of over three centuries of
American experience, an experience which taught Americans to regard
the United States as a White man’s country . . . .89
Following the Commission’s report and during the debate over reparations for
the internment survivors—most of whom lost their homes, their livelihoods,
their possessions, and years of freedom—some members of Congress continued
to insist that the internment was justified. Forgetting that most of those in-
terned were American citizens, certain members of Congress even argued that
internment victims should not be compensated unless the government of Japan
compensated American veterans. Similarly, the Smithsonian Institute faced
protests and bomb threats when it installed an exhibit critical of the internment.
III.B. The Model Minority Myth
[1]
All APAs should be familiar with the model minority myth. A racial stereotype
since the 1960s, the model minority myth portrays APAs as superminorities.90 According to the myth, APAs are a racial minority that
has succeeded through education and hard work, and
whose income and wealth match or exceed that of
White Americans. The model minority myth emphasizes the success of APAs, especially as compared to
Politicians
other people of color.
[2]
In the affirmative action debate, the model minority
myth has surged in prominence. Politicians suggest either that APAs are top students who are singled out for
mistreatment by affirmative action or that APA success
shows that affirmative action is unnecessary. 91
III.B.1. The Model Minority Myth Is Misleading
[1]
[2]
[3]
The numerous television reports, print articles, and
speeches that describe APAs as the model minority
depend principally on the claim that APAs have household incomes equal to or greater than those of Whites.
Like other statistics, this single measurement can be
misleading.
First, APAs generally have more individuals contributing to household income than the national average,
making that statistic an inapt basis for comparison.92
Second, APAs tend to be geographically concentrated
in New York, California, and Hawaii, states with higher
costs of living and above-average incomes for all residents.93 Third, comparisons based on census data are
misleading since the census’s definition of White includes persons of Hispanic origin.94 The more accurate
racial comparison would be between non-Hispanic
Whites and APAs.
suggest either
that APAs are
top students
who are singled
out for
mistreatment
by affirmative
action or that
APA success
shows that
affirmative
action is
unnecessary.
In sum, the data suggesting higher absolute levels of APA household income, if
interpreted carefully, belie the supposed “equality of opportunity” proclaimed
by affirmative action opponents.95 We provide further evidence below of continuing discrimination against APAs, notwithstanding their “model” status.96
III.B.2. APA “Success” Has Non-Racist Explanations
[1]
While the picture of unlimited economic and academic success of APAs is inaccurate, thoughtful analysis still reveals relative success for APAs in education
and income. It is true, for example, that a greater percentage of APA men and
17
women are college graduates than their White counterparts.97 Rather than attributing this achievement to biological or cultural deficiencies within any racial group, we believe such differences can be explained by specific legal, political, and social factors that have shaped the APA community.
[2]
For instance, our immigration laws favor highly-educated Asian professionals.
The watershed 1965 Immigration Act expressly stated a preference for educated
professionals, especially in the scientific, medical, and engineering fields.98 At
the time, the Cold War and the space race demanded an influx of scientific elite
to help sustain U.S. military-industrial dominance. Immigrants from elite families in Asia and other countries were attracted by and absorbed into the expanding technological economy.99
[3]
In addition to immigration policy, geopolitical changes also influenced Asian immigrant demographics. The 1972 U.S.-China détente and the 1975 withdrawal of
U.S. troops from Vietnam profoundly realigned domestic and international
politics in East and Southeast Asia, thereby rendering many Asian dictatorships
politically unstable. Such instability, often accompanied by economic crises,
precipitated the immigration of many upper and middle-class families from
Taiwan, Hong Kong, South Korea, the Philippines, Thailand, Indonesia,
Singapore, and Malaysia.100 From 1965 to the present, the highly educated and
upper/middle-class segments continue to be disproportionately represented
among APA immigrants, especially those from East and South Asia.
[4]
Finally, cultural reactions to ongoing racism may be another explanation for
improved socio-economic mobility for APAs. This mobility may have little to
do with anything essential to Asian cultures as much as their historically contingent reaction to limited opportunity. Professors Stanley Sue and Sumie Okazaki
have argued, for instance, that ethnic, racial, and immigrant discrimination
blocked off various avenues of success for APAs. Since APAs saw no future in
politics, sports, or entertainment, they turned their attention toward education.101 And as they enjoyed mild success through education, this belief—that
educational investment is the sole path to success in America—was reinforced.102 Indeed, this belief may have been bolstered by the model minority
myth, which inculcated teachers to encourage and place high expectations on
APA students while subconsciously discouraging or placing lower expectations
on other minorities.
III.B.3. The Model Minority Myth Is Dangerous
[1]
Like any racial stereotype, the model minority myth hurts those who are its
subject. Since the public assumes that APAs are uniformly doing well, they do
not hear APA requests for help. This laissez-faire approach to all APAs persists
notwithstanding the tremendous heterogeneity among the ethnicities that
make up the racial category APA.103
[2]
Also, in difficult economic circumstances, the very same cause for compliment
is condemned: APAs once seen as hard workers become unfair competitors,104
and anti-Asian prejudice is excused out of an assumption that APAs are doing
too well. Even worse, Whites and other people of color may resent APAs not for
who we are, but for the model minority myth about us.
18
[3]
The model minority myth also harms other racial minorities. From its introduction, the model minority myth has been used to chastise other minorities, to tell
them that they are inferior to APAs, in genes or culture. When the model minority image was introduced, the sociologist who described Japanese Americans
sympathetically did so, he explained, to contrast them with “what might be
termed, ‘problem minorities.’”105 More recently, Richard Herrnstein and Charles
Murray asserted in The Bell Curve that APAs and Whites were inherently more
intelligent than African Americans, 106 while Dinesh D’Souza argued in The End
of Racism that APAs and Whites had cultures superior to that of African Americans.107
[4]
Whatever else APAs decide about affirmative action, we should not allow ourselves to be used to attack other people of color.108 Pitting racial minority groups
against one another represents the worst form of divide-and-conquer political
strategy. APAs must refuse to believe that they are superior to Whites, nonWhites, or anyone else. This is not to denigrate the accomplishments of APAs or
our hard work. But APAs must refuse to buy into derogatory stereotypes that
other people of color have no achievements or shirk hard work. History teaches
us that not long ago, the exact same criticisms were leveled at us, that we were
the stupid, the unassimilable, the depraved, the criminal.109 And our own experiences, whether they be of racial epithets, glass ceilings, or hate crimes, reveal
the continuing existence of racial prejudice.
III.C.
[1]
APAs Still Suffer Racial Discrimination: The Present
Many might agree that racism hurt APAs in the distant past, but question
whether such racism continues in the present. They assume that APAs cannot
possibly face discrimination because they are the “model minority.” Although
the Civil Rights Movement has unquestionably decreased the quantity and
quality of racism against all people of color, racism continues to burden APAs.
We may be optimistic about the future, but we should also be realistic enough
about the present to realize that racism has not gone.
III.C.1. Stereotypes Plague APAs
[1]
For example, stereotypical portrayals of APAs still mark us as unassimilable
foreigners, the very same prejudice that contributed to racist immigration and
naturalization policies, economic discrimination, and internment.
[2]
Consider Senator Alfonse D’Amato’s egregious caricature of Judge Lance Ito,
who presided over the trial of O.J. Simpson. Judge Ito is a U.S.-born citizen,
whose parents were in fact interned during World War II. He speaks English
with a “standard American accent.”110 Nevertheless, Senator D’Amato mocked
him in a halting, ungrammatical, heavily-accented English: “Judge Ito loves the
limelight. He is making a disgrace of the judicial system. Little Judge Ito. . . .
Judge Ito with the wet nose.” 111
[3]
These stereotypes, perpetuated not only by popular media, but by political
leaders,112 help construct society’s conception of APAs. In turn, such views help
construct limits, such as glass ceilings in employment, in the lives of APAs.113
They also lead to racial harassment, as in the case of Marine Corps. Captain
Bruce Yamashita.
19
[4]
When Captain Yamashita entered Officer Candidate School, he had impeccable
credentials. A star tailback in high school, he had been active in Hawaiian politics,114 had excelled in education, and already had a juris doctorate (J.D.) and
masters in international affairs (M.S.F.S.) from Georgetown University. Nevertheless, at Officer Candidate School, he was hounded by racial slurs. He was told to
“go back to your country,” informed that the U.S. had “whipped your Japanese
ass” 115 in World War II, and routinely called “Kawasaki” and “Yamaha.”116
[5]
The slurs were not enough to deter Captain Yamashita, but he was later dismissed for alleged “lack of leadership.” Captain Yamashita refused to accept
this injustice and eventually won a reinstatement with an official apology from
the U.S. Navy and Marine Corps. This episode should give pause to all Americans. APAs in particular should wonder: If even “hyper-qualified” candidates
can suffer such racial harassment, what fate awaits those who are merely “overqualified” or just “qualified”?
III.C.2.
APAs Suffer from Employment Discrimination
III.C.2.a)
The Parity Concept Introduced
[1]
Because subtle, institutionalized prejudice is persistent but difficult to expose,
civil rights officials began in the early 1970s to search for more practicable tools
to root out racism. They began to compare the percentage representation of minorities in the relevant labor, business, or applicant pool (baseline percentage) against
their percentage representation in employment, contracting, or university admissions (actual representation).117 “Parity” is defined as existing when actual representation approximates the baseline percentage. If a minority was under parity, government officials became concerned about possible racial discrimination. If
a minority was at or over parity, they assumed an absence of discrimination.
[2]
The parity measurement came into prominence after the Regents of the University of California v. Bakke118 Supreme Court decision in 1978, when Justice Powell
announced the Court’s “diversity” rationale upholding the constitutionality of
some race-conscious admissions schemes. For a time, the turn toward a diversity-based rationale, measured in terms of “parity,” allowed affirmative action
to continue in the face of Supreme Court retrenchment on civil rights issues. As
long as the Court was willing to call “diversity” a compelling interest, 119 many
forms of affirmative action could flourish in relative obscurity, under the patina
of constitutionality left by Bakke. 120
III.C.2.b)
APAs Are Under-Parity or Would Be but for Affirmative Action
[1]
In many areas, APAs are not near parity.121 In academia, APAs are underrepresented in numerous fields, such as history (2.2%), sociology (2.2%), English/literature (2.1%), philosophy (1.8%), education (1.6%), psychology (1.4%), political science (1.3%), and law (0.9%),122 and are conspicuously underrepresented
in higher education administration and management.123 Nonetheless, the predominant framing of racial discrimination issues in Black-White terms diminishes the significance of APA underrepresentation.124
[2]
The same goes with APA contractors. As a case study, consider California, in
which multiple local government studies have documented the under-parity
status of APA contractors. For example, in San Francisco in the late 1980s, APAs
20
constituted 20% of the baseline percentage of
construction contractors; however, they received
only 5% of the school district’s construction contracts and less than 1% of the city’s overall construction contracts. 125
[3]
[4]
Similarly, a 1992 local study of city employment
in San Francisco revealed that fewer than half of
the municipality’s departments met the 1990 census workforce parity figure of 2.9%.126 APA professionals in San Francisco are particularly underrepresented in the fields of public safety and judicial services. The city and district attorneys offices and police departments are at 50% of the
APA parity rate or less.127 Periodic studies indicate that workforce parity for APA professionals
in San Francisco is declining, with fewer departments today meeting parity than in the previous
10 years.128
Recent data
show that,
among all racial
groups, APA
faculty suffer one
of the lowest
tenure rates
(41%),
significantly
lower than the
overall rate
Finally, when APAs are at parity, it is often due to
affirmative action. Take firefighters for example.
(52%).
In 1974, the San Francisco Fire Department had
only four APAs out of 1800 firefighters. After a
court-ordered affirmative action plan, the Department now has 174 APAs. As explained by firefighter Captain Bernie Lee, “[w]ithout affirmative
action . . . Asian Pacific Americans would not
have had the opportunity to enter in such large numbers.”129
III.C.2.c)
Parity Obscures Discrimination Against APAs
[1]
From statistics that show APAs to be at or over parity, society jumps to the conclusion that APAs are free from discrimination. Unfortunately, these statistics
do not tell the whole story. Not only do these purely quantitative measures
miss qualitative differences in treatment afforded APAs,130 they also invite misconceptions colored by the model minority myth.
[2]
First, just as the presumption that “under-parity necessarily means discrimination” is wrong, so is the presumption that “parity necessarily means no discrimination.” The Asian admissions controversies of the 1980s illustrate that overparity representation and discrimination against APAs are by no means mutually exclusive.131 Indeed, various studies reveal significant evidence of overparity representation in certain fields coupled with continuing discrimination.132
[3]
Second, the numbers showing over-parity status in one field might hide the related under-parity in other fields. Take the distribution of Ph.D.s for example.
In 1993, almost seventy percent of all APA Ph.D.s were earned in engineering, life
sciences, and physical sciences.133 And in these fields, APAs enjoy over-parity
status. On the other hand, as of 1992, APAs were seriously underrepresented in
the humanities and social sciences. Similarly, a study of San Francisco city government employment reveals that APA professionals are concentrated in the di-
21
visions of Operations and Finance, Education, and Health. Thus they may be overparity as “engineers, accountants, analysts and technicians,” but under-parity as
“police officers, firefighters, or attorneys.”134
[4]
Third, over-parity status at the entry-level does not mean over-parity status
higher up on the promotion ladder, when APAs bump into the “glass ceiling.”135
For instance, recent data show that, among all racial groups, APA faculty suffer
one of the lowest tenure rates (41%), significantly lower than the overall rate
(52%).136 Similarly, at the executive or managerial level in higher education,
APAs occupy only one of every one hundred positions.137
[5]
Fourth, facile inferences drawn from over-parity statistics deny the ethnic,
class, and gender heterogeneity of the APA community.138 Aggregated group
statistics offer a monolithic picture of APA success; but whatever economic and
educational achievement that has been attained, it is not shared uniformly by
the various subgroups within the APA category. For example, most of the representation in higher education employment is attributable to East Asian and
South Asian Americans. Just because East Asians, say, are over-parity (in certain fields, in certain career stages), one should not presume that all other APAs
are similarly over-parity. Gender provides another crucial but ignored variable.
Gender differences between APA men and women may be as great or greater
than interethnic differences.139 To cite one example, APAs are the only racial minority group where men outnumber women in such a high proportion (79% to
22%) in full-time faculty positions.140
III.C.3. APAs Are Victims of Racial Violence
[1]
Finally, consider the racial violence that continues to plague APAs. Although exact
numbers are unavailable, various governmental commissions and community
groups have detailed a disturbing rise in the number of hate crimes.141 In fact,
according to the U.S. Civil Rights Commission, in certain cities, such as Boston
and Philadelphia, APAs suffer the highest per capita hate crime rate of all racial
minorities.142
[2]
A defining moment in racial violence against APAs occurred in 1982 with the
murder of Vincent Chin. Mr. Chin, a Chinese American engineer, was beaten to
death with a baseball bat by two laid-off auto workers, who blamed Japan for their
unemployment. This hate crime “stands out as a perverse symbol of racist violence,” for it reveals a sickening, irrational causal chain. The unemployed workers
“transferred blame not only from the Japanese government to the Japanese people,
not only from the Japanese people to United States citizens of Japanese descent,
but finally from Japanese Americans to anyone unlucky enough to bear Asian features.”143
[3]
This horrific event catalyzed APA communities across the nation to unite
against racial violence. While such community activism has increased societal
awareness of the problem, hate violence continues to endanger our communities. For example, in 1992, Mark Cleaver, clad in military camouflage and heavily
armed, shot three people to death, including Junko Nakashima, the wife of a
prominent nursery owner. The killer ’s half-brother stated that Cleaver felt the
Japanese came to this country, bought up a lot of land, and got rich while
22
“Americans” remained poor. “He felt ripped off by the Nakashima family,” the
murderer’s relative explained, “Wouldn’t you?” 144
[4]
Even more recently, in the summer of 1996, Thien Minh Ly, a UCLA graduate,
was stabbed dozens of times by a suspect who casually noted in a personal letter that he had recently killed “a jap.”145 Police investigation revealed the suspect’s
ties to a White Supremacist organization, and after meetings with APA community activists, the prosecution has sought a hate crime penalty enhancement.146
[5]
Regrettably, there are simply too many incidents of racial violence to recount.147
Indeed, there are enough to warrant an annual survey by the National Asian
Pacific American Legal Consortium (“NAPALC”). According to NAPALC’s most
recent audit, 458 anti-Asian incidents were reported in 1995. Southern California witnessed a striking 80% increase in such incidents from 1994, with New
York and Northern California reporting approximately 10% increases.148 These
hate crimes, which not only injure the immediate victim but also terrorize the
surrounding APA community, should demonstrate—even to skeptics—that racial discrimination against APAs continues.
III.D.
[1]
Admission Ceilings: The Problem of Negative Action
Some evidence suggests that universities, concerned about too many APAs on
their campus, have instituted informal ceilings on APA admissions. Certain
politicians have argued that such admission ceilings on APAs result naturally
from affirmative action for other racial minorities. They contend that once you
take race into account in admissions, race can be a plus as well as a minus.149
Needless to say, this has been a source of great concern to APA communities.
And given the issue’s complexity, APA frustration is understandable.
III.D.1. APAs Can Be Treated with Affirmative Action,
Neutral Action, and Negative Action
[1]
To clarify matters, it is helpful to consider three possible regimes. First, APAs
could be included in race-based affirmative action. Second, APAs could be excluded from affirmative action and treated indistinguishably from Whites who
are similarly ineligible. Third, APAs could be capped by an admissions ceiling
such that they are denied admission in order to admit more Whites (not other
racial minorities). These three regimes may be called affirmative action, neutral
action, and negative action.150 We discuss each regime in turn.
[2]
Affirmative Action. Given that the model minority myth is a myth, it may make
plenty of sense to include APAs, or at least certain Asian ethnicities, in affirmative action programs. Indeed, in those fields where a race-based affirmative action program is in place and APAs are under-parity, we recommend a presumption in favor of their inclusion.151 Although the ultimate decision is case-specific
and fact-intensive, we believe that in areas of under-parity, some cogent explanation must be offered for their exclusion.
[3]
Neutral Action. When such an explanation is offered, it will be reasonable to exclude APAs from the affirmative action program and treat them no differently
from everyone else excluded, such as Whites. In other words, admissions will
be neutral as between APA and White admissions. The rationale would be that
23
since APAs do not warrant affirmative action in this particular case, they will be
treated no differently than Americans who happen to be White.
[4]
Negative Action. Negative action does not treat APAs neutrally as compared to
Whites. Rather, it favors Whites over APAs. This is what happens when universities institute an admissions ceiling on APAs. It means that at least one APA will be
denied admission, although if she were White, she would have been admitted.
III.D.2.
[1]
[2]
[3]
24
We Can Simultaneously Reject Negative Action
and Embrace Affirmative Action
While it may be perfectly legitimate to treat APAs
with affirmative action or neutral action, it is
never appropriate to treat them with negative action. Negative action is illegal. APAs who are
harmed by an explicit program of negative action
can and should protest and file lawsuits, which
they should win under current anti-discrimination laws.
What APAs must understand is that negative action against us does not result from affirmative
action for other minorities. In fact, in cases of
proven racial disparities between APA and White
admission rates, the causes have been either stereotypical treatment of APA applicants or other
preferences, such as that for alumni children, who
tend to be predominantly White.152 Furthermore,
eliminating affirmative action does not eliminate
negative action. Regardless of whether a prestigious university practices affirmative action for
other racial minorities, it may still enact informal
measures to limit the number of APAs on campus.
In sum, the only two legitimate regimes, especially for APAs, are affirmative action and neutral action. The specific facts of the situation will
determine which regime is appropriate. When
APAs are not included in affirmative action (and
given neutral action), they will suffer some indirect burden caused by the preferential treatment
given to other racial minorities. But this burden
will be shared across the board among all those
who are not included in affirmative action, such
as Whites. And for reasons identified above, we
believe that the benefits of affirmative action outweigh the burdens, especially when they are distributed broadly.
What APAs must
understand is that
negative action
against us does not
result from
affirmative action
for other
minorities. . . .
Regardless of
whether a
prestigious
university practices
affirmative action
for other racial
minorities, it may
still enact informal
measures to limit
the number of
APAs on campus.
IV. Conclusion
We Have Common Goals
[1]
America’s seemingly intractable legacy of racism has hurt all Americans, especially those of us who happen to be racial minorities. Besides wasting human
resources and destabilizing our society, racism has led to needless stereotyping,
suffering, and cruelty. It is this social problem of racism and White privilege
that affirmative action fights. We seek a society where race is no longer an axis
of social division, inequality, and hatred, nor used to create a repressive social,
economic, or political status—a goal that we hope is shared by all Americans.
APAs Can Play a Critical Progressive Role
[2]
We must all recognize that racial discrimination continues to exist in America,
even against APAs. We must further recognize that affirmative action helps all
Americans, including APAs, and that supporting affirmative action does not
mean authorizing negative action against APAs.
[3]
APAs can play an extraordinarily powerful role in the debate because they can
declare their support for the programs even when they are not directly benefited by them. In certain contexts, it may be legitimate not to include APAs—or
other racial minorities for that matter—in affirmative action programs. In such
cases, they should be treated indistinguishably from Whites.153 If a White person then complains about the “preferential treatment” given to certain racial
minorities, then the similarly situated APA can answer:
[4]
As a racial minority, I continue to suffer from various forms of racial
discrimination. I have personal stories as well as statistical documentation
to prove it. And in that sense, I am disadvantaged compared to you,
simply because of the color of my skin. Nevertheless, I am willing to bear
the same burden that you bear caused by affirmative action. I am willing
to share this burden to help us get beyond racism, to reach a fairer society. I
am willing to go beyond my self-interest in order to strive for a community
of justice. Are you?
We Must Seek Alternatives
[5]
As the next generation of APA scholars, activists, and political participants, we
must demand alternatives that go beyond identifying victims, taking existing
sides, or proclaiming good intentions without forwarding solutions. To those
who wish to abolish affirmative action, we must ask what is their alternative. If
they have none, their agenda should be rejected as non-responsive to the challenge of building a more equitable society.
25
[6]
Recently, opponents of race- and gender-based affirmative action have advocated replacing it with class-based affirmative action. But these two programs
are not mutually exclusive. Universities, for example, can and do consider multiple “diversity” factors—not only race, but also socio-economic disadvantage—in
its admissions decision. We must also recognize that the two programs target different, although somewhat overlapping, problems. In particular, if social contact among the races is necessary to decrease racial prejudice, a race-based affirmative action program is better tailored to promote racial harmony. Finally, we
must ask whether class-based affirmative action is being offered only as a ruse,
to assuage progressives while dismantling raceand gender-based affirmative action. A genuine
commitment to class equality would lead one to
target resources at an individual’s formative
years—with anti-poverty programs that provide
Most importantly,
adequate housing, nutrition, and education to children. But oddly enough, the programs mentioned
we must denounce
so far would instead give mild preferences late in
the prejudice
life, in admissions or employment. This should
give use cause for skepticism.
[7]
In sum, we must demand serious, genuine alternatives that reject both liberal and conservative shibboleths. Liberals suffer a blindspot by thinking
that all racial discrimination falls between BlackWhite poles. This tunnel-vision has allowed conservatives to rally to the cause of APAs and to
portray us as a racial minority victimized by social engineering. We call upon liberals to take
discrimination against APA communities seriously, to reject model minority stereotypes, and
to include APAs, Latina/os, and Native Americans into national debates on race.
within our own
communities, which
allow us to care less
about social justice
and more about
individual
self-interest.
[8]
Conservatives suffer their own blindspot. Their
crusade to terminate affirmative action fails to address over-parity discrimination
suffered by APAs. In fact, conservatives have typically led the charge to weaken
anti-discrimination laws and the agencies that enforce them.154 We call upon conservatives to cease using APAs as their “racial mascot”155 to arrogate moral authority in furtherance of regressive policies.
[9]
Finally, APAs must be mindful of their own blindspot: We possess a “simultaneity” in which we can be both victim and perpetrator of racial oppression.156 We
must reject a self-congratulatory embrace of the model minority myth and reject
policies justified only by the narrowest self-concern. Most importantly, we
must denounce the prejudice within our own communities, which allow us to
care less about social justice and more about individual self-interest.
A Community of Justice
[10] The affirmative action debate affords APAs a unique opportunity to re-envision
a multiracial democracy. In an era of global corporate restructuring and downsizing, APAs should do more than scramble for a piece of a constantly shrinking
26
pie. We should do more than aspire to be “model minority” managers of increasingly scarce resources. Instead, APAs should work toward a bolder reconstruction of society. In coalition with all those genuinely committed to social justice,
we can together pursue a transformative program of social and economic expansion informed by the sort of deep democratic inclusion that places those
least privileged at the forefront.
[11] It is our hope that this policy analysis has provided much food for thought.
Modestly, we also hope it has elevated the quality of discussion on affirmative
action and the role that APAs play in that debate. We would like to have persuaded those on the fence to support affirmative action, not as a panacea, but as
a partial step toward a more comprehensive agenda to address pervasive and persistent inequalities. For those unpersuaded, we still wish to have shown that our
support of affirmative action is not simply self-interested. Rather, it is based on
a coherent commitment to fairness, which rejects self-interest and strives toward a national community of justice.
27
How to Use This Document
A Guide to Reading
[1]
This document occupies an unusual space, somewhere between a ponderous academic article and terse commentary that conveys deeply felt sentiments bluntly.
On the one hand, the authors have not made the exhaustive effort necessary to
conform this document strictly to academic standards. Those interested in more
traditional academic treatments are invited to read articles by the individual authors cited in the footnotes. On the other hand, this document goes much further in
addressing the genuine complexity of affirmative action and its relationship to
Asian Pacific Americans (“APAs”) than most political and policy literature to date.
[2]
Readers familiar with the affirmative action debate should skim Part II, which
contains the general arguments in favor of affirmative action. They should turn
their attention toward Part III, which addresses concerns particular to APAs.
A Guide to Using
[3]
Individuals, especially APAs, who are genuinely uncertain or ambivalent about
affirmative action should use this document to help examine and clarify their
beliefs. Community organizations could use this document as the basis for discussion in an exercise of deliberative democracy.
[4]
Community and civil rights activists in favor of affirmative action can use this
document to bolster their cause. First, it can be shared with all those in positions of power who might be persuaded by its argument. Second, it can be used
to augment the array of arguments favoring affirmative action currently used.
In particular, it may profitably be used in speaker training sessions. The citations, data, and legal analysis are thorough and up-to-date.
[5]
Educators in high schools, colleges, and graduate schools can use this document
as a resource for analysis, discussion, and debate. As teachers, we have an obligation to approach the policy debate over affirmative action with comprehensiveness and care. This document should provide an additional, unconventional entry point of inquiry.
[6]
Government officials can use this document to learn something about APAs, our
history, the particular forms of racism we suffer, and the dangers of assuming
that we are the model minority. This document directly answers the common
cry of government officials that they do not know where APAs stand on the issue of affirmative action and race relations.
[7]
Similarly, media can use this document to help fill a vacuum about APA thinking
on affirmative action. The national media has been slow in recognizing that reporting racial politics without considering all racial groups, including APAs, is
incomplete. Adding the views of APAs is essential, especially with affirmative
action. This document provides not only useful background but a starting point
from which to make further journalistic and investigative inquiries.
28
Acknowledgments
[8]
Publication and distribution of this policy analysis was made possible through
the generous support of the Affiliation of LEAP Asian Pacific American Public
Policy Institute (“APA PPI”) and the UCLA Asian American Studies Center
(“AASC”). The individual authors also thank their deans for summer research
support and their respective research assistants.
[9]
The following individuals contributed constructive criticism: Keith Aoki,
Robert Chang, Pat Chew, Margaret Chon, Richard Delgado, Neil Gotanda, Gil
Gott, Gerald Lòpez, Philip Tajitsu Nash, Karen Narasaki, Paul Ong, Ling-chi
Wang, Theodore Wang, Eric Yamamoto, Tseming Yang, and Wendy Yip. The
authors also thank Connie Chang of UCLA Law for superb research assistance, and Mary Kao of the UCLA AASC for expert desktop publishing.
Notes
[10] Two thousand five hundred copies of this policy analysis were printed in October 1996 and distributed throughout the country to elected officials, community
leaders, civil rights organizations, educational institutions, and the media. The
document was also made available through the Internet. A revised version of
this policy analysis will be published by the UCLA Asian Pacific American Law
Journal in 1997.
[11] To facilitate electronic distribution of this document, each paragraph is numbered for easy citation. Specific paragraphs may be referred to without page
numbers by referring to Part and paragraph number, for example, as I.B, ¶3.
[12] The contents of this document are copyrighted by the four authors jointly. Permission is granted to reprint this document in whole for any noncommercial
purpose, without alteration or addition, provided that notice is given to all four
authors of any such reprints.
[13] Media inquiries may be directed to any of the individual authors. For further
information about future public policy projects by APA law faculty, please contact Professor Jerry Kang.
29
Biographical Information
[14] Gabriel J. Chin joined the faculty of Western New England College School of
Law in Springfield, Massachusetts in July, 1995, after working at the Legal Aid
Society of New York and Skadden, Arps, Slate, Meagher & Flom. A Wesleyan
graduate, he also earned degrees at Michigan and Yale Law Schools. Recipient
of the Thurgood Marshall Prize in 1996 for work on the first Justice Harlan, his
interests include immigration, legal history, and criminal law.
[15] Sumi Cho is the daughter of an immigrant father who hit the glass ceiling as a
midwestern college professor and an immigrant mother who ran the family
businesses in addition to the household. She graduated from the Ethnic Studies
doctoral program at U.C. Berkeley where she also received her J.D. and participated in campus movements for South African divestment, faculty/student affirmative action, and fair tenure review. She currently teaches at DePaul University College of Law and writes from a critical race feminist perspective.
[16] Jerry Kang, born in South Korea, grew up in Skokie, Illinois, a suburb of Chicago. A graduate of Harvard College and Harvard Law School, he began teaching at UCLA School of Law in 1995 after a clerkship on the Ninth Circuit Court
of Appeals and a stint at the National Telecommunications & Information Administration. His areas of teaching and scholarship include civil procedure,
Asian American jurisprudence, and cyberlaw. He is married to Sung Hui Kim,
a transactional attorney practicing in Los Angeles.
[17] Frank H. Wu joined the faculty of Howard University Law School in 1995. He is
an assistant professor and is also a supervising attorney in the Clinical Law
Center. He has published law review articles on affirmative action and immigration, and he writes regularly for The New York Times Syndicate and AsianWeek.
In 1995, he testified before the United States House of Representatives, Judiciary Committee, Constitution Sub-Committee against the Dole-Canady bill,
which would abolish affirmative action in federal government contracting.
Name
Address
Voice
Fax
Net
Gabriel Chin
Western New England College
School of Law
1215 Wilbraham Rd.
413.782.1427
796.2097
[email protected]
Springfield, MA 01119
Sumi Cho
DePaul Univ. College of Law
25 E. Jackson Blvd.
Chicago, IL 60605
312.362.8082
5448
[email protected]
Jerry Kang
UCLA School of Law
Box 951476
Los Angeles, CA 90095-1476
310.206.7298
7010
[email protected]
Frank Wu
Howard School of Law
2900 Van Ness St., N.W.,
Washington, D.C., 20008
202.806.8065
8436
[email protected]
30
endnotes
1
2
3
4
5
6
7
8
Among many publications discussing affirmative action, a few of the recent books include: BARBARA R. BERGMANN, IN DEFENSE OF AFFIRMATIVE ACTION (1996); CLINT BOLICK, THE
AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE A MERICAN C IVIL RIGHTS VISION? (1996);
TERRY EASTLAND, E NDING AFFIRMATIVE A CTION: THE CASE FOR C OLORBLIND J USTICE (1996); RI CHARD D. K AHLENBERG , THE REMEDY : CLASS , RACE, AND AFFIRMATIVE ACTION (1996); JOHN D.
S KRENTNY, THE IRONIES OF AFFIRMATIVE ACTION : POLITICS, CULTURE, AND JUSTICE IN AMERICA
(1996); P AUL C. ROBERTS & LAWRENCE M. STRATTON, THE NEW COLOR LINE: H OW QUOTAS AND
PRIVILEGE DESTROY DEMOCRACY (1995).
See UC Regents, In Historic Vote, Wipe Out Affirmative Action, L.A. TIMES , July 21, 1995, at
A1.
For a comprehensive legal analysis of the initiative, see NEIL GOTANDA ET AL., LEGISLATIVE
IMPACT OF PROP . 209, PRELIMINARY FINDINGS (1996) (on file with authors).
See, e.g., H.R. 2128, 104th Cong., 1st Sess. (1995).
A few of the major publications that have discussed APAs and affirmative action are:
DANA Y. T AKAGI, THE RETREAT FROM RACE: ASIAN-A MERICAN ADMISSIONS AND RACIAL POLITICS
(1992); ASIAN P ACIFIC A MERICAN PUBLIC P OLICY INSTITUTE, LEADERSHIP EDUCATION FOR ASIAN
PACIFICS, COMMON GROUND: PERSPECTIVES ON AFFIRMATIVE ACTION . . . AND ITS IMPACT ON ASIAN
PACIFIC AMERICANS (1995); Viet D. Dinh, Multiracial Affirmative Action, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY , AND THE POLITICS OF INCLUSION 280 (Nicolaus Mills
ed., 1994); Theodore H. Wang & Frank H. Wu, Beyond the Model Minority Myth, in THE
AFFIRMATIVE ACTION DEBATE 191 (George Curry ed., 1996); Gabriel J. Chin, Bakke to the
Wall: The Crisis of Bakkean Diversity, 4 WM. & M ARY BILL R TS. J. 881 (1996); Jerry Kang,
Negative Action Against Asian Pacific Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 HARV. C.R.-C.L. L. R EV. 1 (1996); Theodore H. Wang, Swallowing Bitterness: The Impact of the California Civil Rights Initiative on Asian Pacific Americans, 1995 ANN. SURV. AM. L. (forthcoming 1996); Sumi Cho, Model Minority Mythology and
Affirmative Action: Supreme Stereotypes of Asian Americans 48-56 (June 11, 1996); Frank H.
Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J.
225 (1995); Selena Dong, Note, “Too Many Asians”: The Challenge of Fighting Discrimination
Against Asian Americans and Preserving Affirmative Action, 47 STAN. L. REV. 1027 (1995); Grace
W. Tsuang, Note, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98
YALE L.J. 659 (1989); Norimitsu Onishi, Affirmative Action: Choosing Sides; After Approval
of a Ban by the University of California Regents, Asian-Americans Face Yet Another Divide,
N.Y. TIMES, Mar. 31, 1996, §4A (Education Life), at 26; Benjamin Pimentel, Asian Americans’
Awkward Status: Some Feel Whites Use Them as ‘Racial Wedge’ with Others, S.F. CHRON.,
Aug. 22, 1995, at A1; Rene Sanchez, Struggling to Maintain Diversity: UC Berkeley Takes
Steps to Offset Ban on Affirmative Action, WASH. POST, Mar. 11, 1996, at A1; Diane Seo, Growing
Asian Enrollment Redefines UC Campuses; Education: Their Influence Has Increased with Visibility But Affirmative Action Rollback Fuels Backlash Fear, L.A. TIMES, Dec. 27, 1995, at A1;
Amy Wallace, UC Applications Drop Among Some Minorities; Education: White, Asians Apply
in Record Numbers; Some See Dismantling of Affirmative Action as a Factor, L.A. TIMES , Feb.
14, 1996, at A1.
For a bibliography on APAs and affirmative action, see Glenn Omatsu, Behind the Affirmative Action Debate: Two Visions of America, 21 AMERASIA J. 251 (1995-1996).
Institutional affiliations are for identification purposes only.
In light of the enormous impact that “race” has had on American history, it is strange to
realize the difficulty of defining what “race” actually is. Current thinking views “race”
not as a precise biological categorization as much as a social, cultural, and political
construction that is anything but precise. See, e.g., MICHAEL OMI & HOWARD WINANT, R ACIAL F ORMATION IN THE UNITED S TATES : FROM THE 1960S TO THE 1990S 53-76 (2d ed. 1994).
See generally MORRIS DEES, GATHERING S TORM (1996) (documenting the growing menace
that militia groups present to U.S. democracy and their links to White Supremacist or-
31
ganizations); RICHARD J. HERRNSTEIN & CHARLES M URRAY, THE BELL CURVE: INTELLIGENCE
CLASS STRUCTURE IN AMERICAN LIFE (1994).
When the FHA issued its underwriting guidelines to loan officers, it declared that “[i]f
a neighborhood is to retain stability, it is necessary that properties shall continue to be
occupied by the same social and racial classes. A change in social or racial occupancy
generally contributes to instability and a decline in values.” D ENNIS J UDD & TODD
S WANSTROM, CITY POLITICS 204 (1994). Judd and Swanstrom report that renowned sociologist and consultant to the FHA, Homer Hoyt, issued a 1933 report to the FHA on the
racial “ranking” of the most favorable to least favorable mortgage candidates:
1. English, Germans, Scotch, Irish, Scandinavians
2. North Italians
3. Bohemians or Czechoslovakians
4. Poles
5. Lithuanians
6. Greeks
7. Russian Jews of lower classes
8. South Italians
9. Negroes
10. Mexicans
Id. Lest there be any doubt, Hoyt emphasized that the racial hierarchy was not fluid
for people of color, regardless of class or culture: “Except in the case of Negroes and
Mexicans . . . these racial and national barriers disappear when the individuals of the
foreign nationality groups rise in the economic scale or conform to the American standards of living . . . .” Id.
George Lipsitz, The Possessive Investment in Whiteness: Racialized Social Democracy and
the ‘White’ Problem in American Studies, 47 AM. Q. 369, 372 (1995).
J UDD & SWANSTROM , supra note 9, at 205.
M ELVIN OLIVER & THOMAS SHAPIRO, BLACK W EALTH/W HITE WEALTH 16 (1995).
See generally id. See also D AVID D. TROUTT, T HE T HIN R ED LINE : HOW THE P OOR STILL PAY
MORE (1993) (documenting that poor people in minority neighborhoods pay more for basic
services and necessities, such as food, housing, health care, banking, and credit services).
S KRENTNY, supra note 1, at 153 (quoting a speech by Lyndon Johnson).
See generally Keith Aoki, Foreign-ness & Asian American Identities: Yellowface, World War
II Propaganda and Bifurcated Racial Stereotypes, 4 UCLA Asian Pac. Am. L.J. (forthcoming
1997); Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258 (1992);
David B. Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV . 899, 908-09 (1993).
See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with
Unconscious Racism, 39 S TAN. L. REV. 317, 321 (1987) (“This failure [to recognize that racism is both a crime and a disease] is compounded by a reluctance to admit that the illness of racism infects almost everyone.”).
PrimeTime Live: True Colors (ABC television broadcast, Sept. 26, 1991). In fact, recent studies
show that residential segregation is increasing, not decreasing. See DOUGLAS M ASSEY &
N ANCY DENTON, AMERICAN APARTHEID 81 (1993) (arguing that despite high hopes in the
early 1970s following the passage of various civil right laws, segregation of Blacks and
Whites persists at extremely high levels that is “so intense that it can only be described
as hypersegregation”).
As philosopher Judith Jarvis Thompson put it: “No doubt few, if any [young White
male applicants], have themselves, individually, done any wrongs to Blacks and women.
But they have profited from the wrongs the community did. Many may actually have
been direct beneficiaries of policies which excluded or downgraded Blacks and women
perhaps in school admissions, perhaps in access to financial aid, perhaps elsewhere;
and even those who did not directly benefit in this way had, at any rate, the advantage
in the competition which comes of confidence in one’s full membership, and of one’s
rights being recognized as a matter of course.” JUDITH JARVIS THOMPSON , RIGHTS, RESTITUTION , & RISK : ESSAYS IN M ORAL THEORY 152 (1986).
AND
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By “White” we mean what the Census Bureau would call non-Hispanic White.
MASSEY & D ENTON, supra note 17, at 81, 109-14.
Through a series of exclusionary tactics, realtors limit the likelihood of black entry into
white neighborhoods and channel black demand for housing into areas that are within
or near existing ghettos. White prejudice is such that when black entry into a neighborhood is achieved, that area becomes unattractive to further white settlement and
whites begin departing at an accelerated pace. This segmentation of black and white
housing demand is encouraged by pervasive discrimination in the allocation of mortgages and home improvement loans, which systematically channel money away from
integrated areas. The end result is that blacks remain the most spatially isolated population in U.S. history.
Id. at 114.
Jerry Kang, The Future of Affirmative Action in Higher Education, CROSSCURRENTS 2 (Spring/
Summer 1996); see also Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47
S TAN. L. R EV. 855, 863 (1995) (“We believe that encounters among students from different backgrounds especially within an academic institution that seeks to encourage intergroup relations and discoursetend to reduce prejudice and alienation.”).
See Amici Brief of Columbia University, Harvard University, Stanford University, and
the University of Pennsylvania at 13, Regents of the University of California v. Bakke,
438 U.S. 265 (1978) (claiming that an independently compelling goal of affirmative action is “diversifying the leadership of our pluralistic society”).
Memorandum from Walter Dellinger, Assistant Attorney General, to General Counsels,
Justice Department Memorandum, June 28, 1995, 1995 DLR 125, text near note 37.
As the Supreme Court has explained in connection with broadcast diversity:
The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. . . . Rather, both Congress and the
FCC maintain simply that expanded minority ownership of broadcast outlets will, in
the aggregate, result in greater broadcast diversity. A broadcasting industry with representative minority participation will produce more variation and diversity than will
one whose ownership is drawn from a single racially and ethnically homogeneous group.
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 579 (1990), overruled on other grounds,
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
For further discussion of the connection between equality and the social meaning of
governmental practices, see Jerry Kang, Negative Action Against Asian Pacific Americans:
The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 HARV . C.R.-C.L. 1, 2136 (1996) [hereinafter Kang, Negative Action].
South Central Los Angeles had lost 70,000 high-wage jobs between 1978 and 1982. As
of 1990, one third of all residents lived in households beneath the poverty line; one fourth
was on public assistance and high school drop-out rates ranged from 63 to 79%. See Kyeyoung Park, The Morality of a Commodity: A Case Study of ‘Rebuilding L.A. Without Liquor
Stores,’ 21 AMERASIA J. 1 (1995/1996).
This is not to say that people can have role models only of their own race. Nonetheless,
in America today, race continues to have social salience, such that the successes of a
minority individual will often inspire other individuals of the same race to imagine
and attempt similar success.
Stanley Fish, Affirming Affirmative Action, S ALT EQUALIZER 7 (Summer 95). See generally
S TEPHANIE WILDMAN, P RIVILEGE REVEALED (1996). See also HARLON DALTON, R ACIAL HEALING
105-26 (1995).
Peter H. King, On California: Story of a Story, L.A. TIMES , Apr. 5, 1995, at A3.
Dateline (NBC television broadcast, Jan. 23, 1996), available in WESTLAW, 1996 WL 6703887.
Id.
Id.
Richard H. Fallon, Jr., To Each According to His Ability, From None According to His Race:
The Concept of Merit in the Law of AntiDiscrimination, 60 B.U. L. REV. 815, 872 (1980) (emphasis omitted). Of the three conceptions of merit discussed, Professor Fallon notes that this
conception “describes the reality of most programs of university admissions.” Id.
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Chang-Lin Tien, Affirming Affirmative Action, in COMMON G ROUND: PERSPECTIVES ON A FFIRMATIVE A CTION . . . AND ITS IMPACT ON A SIAN P ACIFIC A MERICANS, ASIAN P ACIFIC AMERICAN
PUBLIC POLICY I NSTITUTE 19, 20 (1995).
See, e.g., J OEL DREYFUS & CHARLES LAWRENCE III, THE B AKKE C ASE: T HE P OLITICS OF INEQUALITY 128-29 (1979) (discussing a remarkable increase in standardized test scores and grades
of Berkeley law students between 1967 and 1976, and of medical students nationwide
between 1957 and 1975); Jean Webb, The 6 Percent Solution: Yale Law School’s Admissions
Process, YALE LAW REPORT, Spring 1994, at 15-16 (noting that Yale is the most selective law
school, and had a 1/3 minority representation in the preceding class); Peter Applebome,
The Debate on Diversity in California Shifts, N.Y. TIMES , June 4, 1995, §1, at 1 (quoting Bob
Laird, admissions director at the University of California at Berkeley, as saying, “There’s a
myth that in the course of diversifying the campus we’ve lowered our standards. . . . By
any measure, the opposite is true. . . . [T]he current freshman class is stronger than the
one 10 years ago.”); Bruce Weber, Inside the Meritocracy Machine, N.Y. TIMES, Apr. 28, 1996, §6
(Magazine), at 44, 46, 56 (noting that Harvard College is simultaneously increasingly selective and committed to substantial minority representation). See generally Philip J. Cook
& Robert H. Frank, The Growing Concentration of Top Students at Elite Schools, in S TUDIES
OF SUPPLY AND DEMAND IN H IGHER E DUCATION (Charles Clotfelter & Michael Rothschild
eds., 1993).
Cf. H ELEN L. HOROWITZ, CAMPUS LIFE : UNDERGRADUATE CULTURES FROM THE END OF THE EIGHTEENTH CENTURY TO THE PRESENT 189 (1987) (noting an increase in the number of 18- to 21year olds attending college between 1930 and 1950); RICHARD N. SMITH, T HE HARVARD
CENTURY: T HE MAKING OF A UNIVERSITY TO A NATION 169 (1986) (“Above all else, the G.I. Bill
of Rights opened Harvard to a diversity of enrollment and outlook unimaginable [previously].”); id. at 214 (noting that the G.I. Bill and nationwide recruiting, including
Blacks from the South, were part of Harvard’s program of replacing “prewar standards
of social and economic standing” with “more stringent tests of selectivity”).
Troy Duster, The Structure of Privilege and Its Universe of Discourse, 11 AM . SOCIOLOGIST 7378 (May 1976).
Ling-chi Wang, Between Being Used and Being Marginalized in the Affirmative Action Debate: Re-envisioning Multiracial America from an Asian American Perspective, 6 ASIAN AM .
POL’ Y REV. 49, 51-52 (1996).
Prior GPAs and standardized test scores are designed to predict future grades, but they
do not accomplish this task perfectly. See, e.g., Franklin Evans, Recent Trends in Law School
Validity Studies, in IV REPORTS OF LAW S CHOOL ADMISSIONS COUNCIL S PONSORED RESEARCH ,
1978-1983, at 347 (1984); James C. Hathaway, The Mythical Meritocracy of Law School Admissions, 34 J. LEGAL EDUC . 86 (1984); LINDA WIGHTMAN & D AVID MULLER , AN ANALYSIS OF
DIFFERENTIAL VALIDITY AND DIFFERENTIAL PREDICTION FOR BLACK, MEXICAN AMERICAN, HISPANIC
AND W HITE LAW SCHOOL STUDENTS (LAW SCHOOL ADMISSIONS COUNCIL RESEARCH R EPORT 9093 1990).
The Supreme Court has recognized that numerical indicators may poorly predict actual
performance. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), a unanimous Court noted
the “inadequacy of broad and general testing devices . . . as fixed measures of capability.” It noted that “history is filled with examples of men and women who rendered
highly effective performance without the conventional badges of accomplishment . . .”
Id. at 433.
Cf. RONALD D WORKIN, LAW’ S E MPIRE 394 (1986) (arguing that the proposition that one
should not be judged on a quality beyond one’s control “has been decisively rejected
throughout American law and politics”).
See, e.g., John D. Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard
and Yale, 26 COLUM. J.L. & SOC. PROBS . 491 (1993); Nancy Folk, Deciding Who Goes to Yale,
and Why, N.Y. TIMES , Feb. 12, 1995 (Connecticut Weekly), at 3, 3 (quoting Yale’s director
of admissions as saying, “We have a stated commitment to students who are applying
to us from families of Yale College graduates.”); William Honan, Picking a Class of ’98:
The Early Returns Are in, N.Y. TIMES , Dec. 15, 1993, at B9, B9 (noting that Brown offers
preferences to legacies).
See, e.g., Douglas L. Edwards, Rejected by College?, N.Y. T IMES , Apr. 9, 1983, 1, at 23, 23
(Edwards, a former admissions officer at Brown, notes that preference is given to “‘de-
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velopment cases’that is, applicants from families perhaps wealthy enough to donate a
dormitory or endow a department.”).
See KAHLENBERG, supra note 1, at 54 n.75.
Ralph Frammolino & Mark Gladstone, UC Lobbyist Actively Pursued Aid Requests; Education: Records Show He Kept Detailed Logs of Efforts to Gain Admission for Applicants Connected to Political Figures, L.A. TIMES , Mar. 28, 1996, at A3; Ralph Frammolino & Mark
Gladstone, Politicians Sought Aid of UC Lobbyist; Education: State Officials Made Requests
for Admissions, Housing Aid and Other Assistance at Every UC Campus, Records Show, L.A.
TIMES , Mar. 26, 1996, at A1.
Ralph Frammolino et al., UCLA Eased Entry Rules for the Rich, Well-Connected; Education:
Chancellor and Top Aides Gave Admissions Help to Friends or Relatives of Donors and Others
Records Show, L.A. T IMES, Mar. 21, 1996, at A1; Ralph Frammolino et al., Some Regents
Seek UCLA Admissions Priority for Friends; Education: Gov. Wilson and Others Who Pushed
to End Affirmative Action Are Among Officials Who Sought Assistance, Records Show, L.A.
TIMES , Mar. 16, 1996, at A1.
Mark Gladstone & Ralph Frammolino, UC Berkeley Panel Handles Admission Requests by
VIPs; Education: Special Committee Reviewed 240 Such Bids Over Past Three Years and Took
No Action on 204 of Them, L.A. TIMES, Apr. 11, 1996, at A1.
See S KRENTNY, supra note 1, at 37-38:
The federal government and forty-seven states give preferences to veterans who take
the civil service examination, which, ironically enough, was designed to ensure merit
hiring. The federal government and most states, among sundry other measures, simply add ten points to the scores of disabled veterans or their wives, and five points to
the scores of nondisabled veterans. After the bonus points are added, veterans are often to be preferred over nonveterans with equal scores. Seven states give absolute preference to all veterans who pass the examination.
Carl E. Brody, Jr., A Historical Review of Affirmative Action and the Interpretation of Its Legislative Intent by the Supreme Court, 29 A KRON L. REV. 291, 294-95 (1996).
See Fish, supra note 28, at 8.
115 S. Ct. 2097 (1995).
We note that the Fifth Circuit has recently rejected educational diversity as a compelling interest in Hopwood v. Texas, 84 F.3d 720 (1996). The Supreme Court recently denied certiorari in this case. Texas v. Hopwood, 116 S. Ct. 2581 (1996). It is important to
note that, as a matter of law, a denial of a petition for certiorari has zero precedential
effect. It is technically wrong to infer that the Supreme Court either approves or disapproves of the Fifth Circuit’s decision.
Before Adarand, race-conscious programs were often reviewed under what lawyers call
“intermediate scrutiny.” We strongly believe that this “intermediate” level provides the
appropriate degree of scrutiny and that strict scrutiny, as currently understood, is unnecessary. This is because intermediate scrutiny would easily smoke out and invalidate any malicious acts of discrimination of the Jim Crow vintage, while recognizing the
substantial differences between old-style racial discrimination and affirmative action.
In Adarand, the Court made prominent use of the Japanese American internment in explaining why strict scrutiny was necessary to review even benign race-conscious remedies. It is only a slight oversimplification to describe the Court’s argument as, “Because we interned the Japanese Americans, we must get rid of affirmative action.” See
generally Reggie Oh & Frank Wu, The Evolution of Race in the Law: The Supreme Court Moves
From Approving Internment of Japanese Americans to Disapproving Affirmative Action for
African Americans, 1 M ICH. J. RACE & L. 165 (1996).
The first APAs were Filipino seamen who abandoned their Spanish ships near Mexico
and resettled in Louisiana in 1565 and 1815. See MARINA E. ESPINA, F ILIPINOS IN LOUISIANA
38-39 (1988).
The Exclusion Act barred the entry of laborers for 10 years. The Act was amended and
extended in 1884, 1888, 1892, and 1902, then made permanent in 1904. See BILL ONG HING,
MAKING AND REMAKING A SIAN AMERICAN THROUGH IMMIGRATION POLICY , 1850-1990, at 23-26
(1993). See also Chae Chan Ping v. United States, 130 U.S. 581 (1889) (upholding the
constitutionality of the 1888 Scott Act, which revoked tens of thousands of previously
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valid return-entry certificates). The Exclusion Act was not repealed until 1943, when
our political alliance with China in World War II made the Act intolerable.
Prior to the Chinese Exclusion Act, Congress passed the Page Law in 1875 partly to respond to the perceived problem of Asian prostitution. Historian Ronald Takaki notes
that the law “was enforced so strictly and broadly [that] it served not only to exclude
Chinese prostitutes but also to discourage Chinese wives from coming” to America.
RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 40 (1989).
Immigration Act of 1924, 43 Stat. 153, §13(c) (repealed 1952). A few Asians continued
to enter the United States as non-quota immigrants through certain family unification
exceptions.
This law principally targeted the Japanese. By this time, the Chinese had already been
excluded by the Chinese Exclusion Acts.
Even after the 1965 reforms, Asian immigrants continue to suffer from a bureaucratic
crawl in receiving visas. For example, spouses of U.S. citizens from the Philippines
must wait an average of seven years. Siblings from the Philippines must wait over 13
years. See H ING, supra note 55, at 115.
The phrase comes from K ENNETH L. K ARST, B ELONGING TO AMERICA : EQUAL C ITIZENSHIP AND
THE CONSTITUTION (1989).
See, e.g., United States v. Thind, 261 U.S. 204 (1923); Ozawa v. United States, 260 U.S.
178 (1922). Thind, described by the Court as a Hindu of high caste, was deemed not to
be White despite various anthropological accounts that Indians were technically Caucasian. I AN HANEY -LOPEZ , WHITE BY LAW 79-109 (1996). Ozawa, a person of Japanese descent, had lived continuously in the United States for 20 years, had three years of education at the University of California, sent his children to American schools, attended
American church, and spoke only English at home. Nonetheless, because he was not
White, he could not naturalize. YUJI ICHIOKA, THE ISSEI 210-26 (1988).
In fact, the change in U.S. immigration and naturalization law and policy may have
less to do with enlightened racial attitudes and more to do with the converging Cold
War interests of U.S. foreign policymakers seeking to win the “hearts and minds” of
unaligned Third World countries. John Hayakawa Torok, “Interest Convergence” and
the Liberalization of Discriminatory Immigration and Naturalization Laws Affecting Asians,
1943-65, in CHINESE AMERICA : HISTORY AND PERSPECTIVES 1995, at 1 (1995).
“All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.” U.S.
CONST ., amend. XIV, §1 (emphasis added).
The argument was that the Chinese, although subject to American law and taxation,
were not “subject to the jurisdiction” of the United States as required by the Fourteenth
Amendment.
169 U.S. 649 (1898). The Court explained that the phrase “subject to the jurisdiction” was
intended merely to exclude children of parents in diplomatic service or of soldiers in hostile occupation of the country. Id. at 688. It also explained that “[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in
the United States, of citizens or subjects of other countries, would be to deny citizenship to
thousands of persons of English, Scotch, Irish, German or other European parentage, who
have always been considered and treated as citizens of the United States.” Id. at 694.
Justice Fuller disagreed, and in a rhetorical flourish, added that “the presence within our
territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently
incapable of assimilating with our people, might endanger good order, and be injurious to
the public interests . . . .” Id. at 731 (quoting Fong Yue Ting v. United States, 149 U.S.
698, 717 (1893). Justice Harlan, who is widely quoted for advancing a color-blind Constitution in his dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), joined Fuller’s dissent.
See Regan v. King, 48 F. Supp. 222 (N.D. Cal. 1942).
See, e.g., Neil A. Lewis, Bill Seeks to End Automatic Citizenship for All Born in the U.S., N.Y.
T IMES, Dec. 14, 1995, at A26.
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See Robert Shogan, Abortion Foes Shred Dole’s Tolerance Clause; GOP: Draft Platform
Would Also Deny Citizenship to Children Born in United States to Illegal Immigrants, L.A.
TIMES , Aug. 6, 1996, at A1.
Lewis, supra note 67, at A26.
See, e.g., SUCHENG CHAN , THIS B ITTERSWEET SOIL: T HE C HINESE IN CALIFORNIA AGRICULTURE,
1860-1910, at 51-52, 371-74 (1986); John Wunder, Anti-Chinese Violence in the American
West, 1850-1910, in LAW FOR THE ELEPHANT, L AW FOR THE BEAVER: E SSAYS IN THE LEGAL HIS TORY OF THE NORTH AMERICAN WEST 212 (John McLaren et al. eds., 1992). For an historical
overview of racially motivated violence against Chinese, Japanese, Asian Indian, Filipino, and Koreans in the U.S., see Sumi Cho, Model Minority Mythology and Affirmative
Action: Supreme Stereotypes of Asian Americans 48-56 (June 11, 1996) (unpublished manuscript, on file with authors) [hereinafter Cho, Model Minority Mythology].
Robert S. Chang, Toward an Asian Pacific American Legal Scholarship: Critical Race Theory,
Post-structuralism, and Narrative Space, 81 CAL. L. REV . 1241, 1255 n.55 (1993). Professor
Chang notes that this may be a gross underestimate because most incidents were not
documented.
See, e.g., Charles J. McClain & Laurene W. McClain, The Chinese Contribution to the Development of American Law, in ENTRY DENIED : EXCLUSION AND THE C HINESE COMMUNITY IN
AMERICA , 1882-1943, at 3 (Sucheng Chan ed., 1991); Charles J. McClain Jr., The Chinese
Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL.
L. REV. 529 (1984).
For instance, California’s anti-miscegenation law was not repealed until 1948. See
HYUNG -CHAN KIM , DICTIONARY OF ASIAN PACIFIC A MERICAN HISTORY 137 (1986). The Supreme Court struck down all anti-miscegenation laws as unconstitutional in Loving v.
Virginia, 388 U.S. 1 (1967).
See Gong Lum v. Rice, 275 U.S. 78 (1927) (affirming federal constitutionality of Mississippi constitutional requirement of separate schools for Whites and “colored races”).
See, e.g., People v. Hall, 4 Cal. 399 (1854). This de jure disability was removed by the
1870 federal Civil Rights Act.
This led to the famous Supreme Court decision in Yick Wo v. Hopkins, 118 U.S. 356
(1886), which is commonly cited for the propositions that the Equal Protection Clause
of the 14th Amendment protects all persons, not just citizens, and that uneven enforcement of a facially neutral law may amount to an equal protection violation.
See Takahashi v. Fish and Game Comm’n, 334 U.S. 410 (1948) (striking down the California law).
See, e.g., Terrace v. Thompson, 263 U.S. 197 (1923) (upholding alien land laws in Washington); Porterfield v. Webb, 263 U.S. 225 (1923) (upholding alien land laws in California).
See Takahashi, 334 U.S. at 413; Oyama v. California, 332 U.S. 633 (1948).
See Fujii v. California, 242 P.2d 617 (1952).
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2106 n.* (1995) (interim edition).
See TAKAKI, supra note 56, at 15.
CAREY M CWILLIAMS, PREJUDICE; JAPANESE -AMERICANS: S YMBOL OF R ACIAL I NTOLERANCE 251
(1944).
Korematsu v. United States, 323 U.S. 214 , 215 (1944).
See PETER IRONS , JUSTICE AT W AR: T HE STORY OF THE JAPANESE A MERICAN I NTERNMENT CASES
202-03, 280-89, 293, 303-05 (1983); Eric K. Yamamoto, Korematsu Revisited Correcting the
Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 SANTA CLARA L. REV. 1, 1019 (1986) .
Korematsu, 323 U.S. at 233 (Murphy, J., dissenting).
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984)
Id. at 1416-17 (N.D. Cal. 1984) (quoting COMMISSION ON WARTIME RELOCATION AND I NTERNMENT OF CIVILIANS , PERSONAL JUSTICE DENIED (1982)) (granting Fred Korematsu’s writ of
coram nobis and setting aside his criminal conviction).
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R OGER DANIELS, CONCENTRATION C AMPS; NORTH AMERICA : JAPANESE IN THE UNITED STATES AND
CANADA DURING WORLD WAR II, at xvi (1981).
See Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15
B.C. THIRD W ORLD L.J. 225, 238 n.65 (1995) (listing representative articles about the
model minority myth).
For example, House Speaker Newt Gingrich stated that “Asian Americans are facing a
very real danger of being discriminated against because they are becoming overrepresented at prestigious universities that have affirmative action plans.” Clarence Page, Asian
Americans in Middle of California Controversy, OREGONIAN, May 24, 1995, at D7. California
Governor Pete Wilson declared in a CNN interview, “Twenty years ago if a more qualified African American student was denied a position in a college class because of his or
her skin we called it discrimination and rightly condemned, but now Caucasians and
Asian Americans are being discriminated against in the name of affirmative action.”
CNN television broadcast, May 1, 1996.
See T AKAKI, supra note 56, at 475; Diane Crispell, Family Ties Are a Boon for Asian-Americans, WALL S T. J., Sept. 28, 1992, at B1.
T AKAKI, supra note 56, at 475.
See S UCHENG CHAN , ASIAN AMERICANS: AN INTERPRETIVE HISTORY 168 (1991).
One final problem common to such research analyzing 1970 and 1980 census data is
that income comparisons typically fail to hold educational levels constant. As a result,
APA income is misleadingly high since APAs on the average have more years of schooling
than the average American. See TAKAKI, supra note 56, at 475-76. Controlling 1970 and
1980 census income data for educational levels, non-Hispanic White Americans have
higher incomes than APAs. In other words, in order to achieve equality, APAs must overinvest in education or other forms of human capital. Id. at 475-76 n.6 (citing research by
Amado Cabezas, Gary Kawaguchi, and Larry H. Shinagawa). As Cabezas and Kawaguchi
have shown, in order to earn an income comparable to White men, Japanese American
men acquired more education and worked longer hours. Males from other APA ethnic
groups do not match the income level of their White counterparts when human capital
investments are controlled. Korean American men earned only 82% of White men’s income, Chinese American men 68%, and Filipino men 62%. Id.
See infra part III.C.
Data from 1989 to 1991 reflect that 48% of APA males between ages 25 and 64 have four
or more years of college education, compared to 29% of White males in the same age
bracket. For females, the percentages are 38 for APAs and 23 for Whites. See Paul Ong
& Suzanna J. Hee, Work Issues Facing Asian Pacific Americans: Labor Policy, in THE STATE
OF ASIAN P ACIFIC AMERICA : POLICY ISSUES TO THE YEAR 2020, at 141, 144 (1993) [hereinafter
Ong & Hee, Work Issues].
H ING, supra note 55, at 198 app. See also Ong & Hee, Work Issues, supra note 97, at 145.
At the same time, the Immigration and Reform Act of 1965 granted U.S. labor unions the
ability to approve or disapprove preferences according to the supply of blue-collar labor, thereby limiting working-class immigrants. Thus, after 1965, the combined preference for technicians and professionals and limitations on blue-collar immigrants served to
increase the proportion of South and East Asian immigrants from middle and upper-middle
class families. These professional class Asian immigrants were a marked departure from
the largely working-class immigrants from China, India, Japan, Korea, and the Philippines prior to 1965.
This preference was modified in 1976 to require a job offer from an employer prior to
immigration. Nevertheless, the remaining family reunification preferences continued
the disproportionate representation of the educated class by allowing educated Asians
who had already immigrated to sponsor their often highly educated relatives. Bill Ong
Hing, Making and Remaking Asian Pacific America: Immigration Policy, in THE S TATE OF
A SIAN PACIFIC AMERICA: POLICY ISSUES TO THE YEAR 2020, at 127, 131 (1993).
L. Ling-chi Wang, Trends in Admissions for Asian Americans in Colleges and Universities:
Higher Education Policy, in THE STATE OF A SIAN PACIFIC AMERICA: P OLICY ISSUES TO THE YEAR
2020, at 49, 52 (1993).
Stanley Sue & Sumie Okazaki, Asian American Educational Achievements: A Phenomenon
in Search of an Explanation, in THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE 139 (Don T.
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Nakanishi & Tina Y. Nishida eds., 1995) (“To the extent that mobility is limited in noneducational avenues, education becomes increasingly salient as a means of mobility.
That is, education is increasingly functional as a means for mobility when other avenues are blocked.” )
As Professors Sue and Okazaki have recognized, one must then investigate why other
minority groups have not adopted the same attitude toward overinvestment in education. See id. at 141. Tentatively, they suggest that different groups may develop different folk wisdoms about success. And although all people of color may share abstract
beliefs in the value of education, APAs seem to hold a more concrete belief that “success in life has to do with the things studied in school.” Id. at 142.
For instance, different Asian ethnic groups have markedly different average incomes.
Paul Ong & Suzanne J. Hee, Economic Diversity, in T HE S TATE OF ASIAN P ACIFIC A MERICA:
ECONOMIC D IVERSITY, ISSUES AND POLICIES 31-56 (Paul Ong ed., 1994) [hereinafter Ong &
Hee, Economic Diversity]; HING , supra note 55, at 135-38, 171-74.
One 1869 newspaper editorial complained, “Chinaman can live where stronger than
he would starve. Give him fair play and this quality enables him to drive out stronger
races.” ROGER DANIELS, ASIAN A MERICA: C HINESE AND JAPANESE IN THE UNITED STATES S INCE
1850, at 40 (1988).
William Petersen, Success Story: Japanese-American Style, N.Y. TIMES , Jan. 9, 1966 (Magazine), at 20, 20-21.
In The Bell Curve, authors Charles Murray and Richard Herrnstein revive the notion
that African Americans are inherently intellectually inferior to Whites and Asians:
Despite the forbidding air that envelops the topic, ethnic differences in cognitive ability are neither surprising nor in doubt. Large human populations differ in many ways,
both culturally and biologically. It is not surprising that they might differ at least slightly in
their cognitive characteristics. . . . East Asian (e.g., Chinese, Japanese) whether in America
or Asia, typically earn higher scores on intelligence and achievement tests than White
Americans . . . . The average White person tests higher than about 84 percent of the population of Blacks . . . .
HERRNSTEIN & MURRAY , supra note 8, at 269-70.
See DINESH D’SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTIRACIAL SOCIETY 24 (1995)
(identifying “the main contemporary obstacle facing African Americans [as their] destructive and pathological cultural patterns of behavior”).
Mari Matsuda, We Will Not Be Used, 1 UCLA ASIAN AM. PAC . ISLANDS L.J. 79, 80-81 (1994).
See supra III.A.
Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for
the Last Reconstruction, 100 YALE L.J. 1329, 1361 (1991). Professor Matsuda has reminded us
that every person speaks with an accent. She also reports sociolinguistic research that
reveals “comprehension is as much a function of attitude as it is of variability.” Id. at
1362.
Cynthia K. Lee, Beyond Black and White: Racializing Asian Americans in a Society Obsessed
with O.J., 6 HASTINGS WOMEN’S L.J. 165, 175 (1995) (quoting Sen. D’Amato) (emphasis added).
“Senator Ernest Hollings of South Carolina suggested that a factory’s employees ‘draw
a mushroom cloud and put underneath it: Made in America by lazy and illiterate workers
and tested in Japan.’” Jerry Kang, Note, Racial Violence Against Asian Americans, 106 HARV.
L. REV. 1926, 1940-41 (1993).
See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 WM. &
MARY L. R EV. 1, 46-53 (1994).
For example, he was one of the youngest elected delegates to the 1978 Hawaii State
Constitutional Convention.
See Lee, supra note 111, at 186.
Telephone Interview with Bruce Yamashita (Sept. 9, 1996).
Pursuant to Executive Order 11246, the first federal affirmative action policy, the Office
of Federal Contract Compliance Programs was created to monitor affirmative action
compliance by those institutions receiving federal grants and contracts. An “underutilization analysis” was developed to determine when units or institutions hired below
the parity rate in light of the available pool of minority applicants.
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118
119
120
121
122
123
124
40
438 U.S. 265 (1978). In the highly divided Bakke opinion, Justice Powell was able to eke
out a narrow plurality for the striking of the Davis plan as a quota and the approval of
the use of race in admissions as a “plus” factor to further the compelling interest of “diversity.” See id. at 313-14. Moreover, as Professor Foster suggests, “the diversity concept originated in Bakke, was further developed in Metro Broadcasting, and has since
been increasingly invoked in societal discourse because of the legitimacy lent to the
concept in those cases.” Sheila Foster, Difference and Equality: A Critical Assessment of the
Concept of ‘Diversity,’ 1993 WIS. L. REV . 105, 111 (1993).
More recently, the future of the diversity rationale has been put in question. See Hopwood
v. Texas, 78 F.3d 932 (5th Cir. 1996). For a brief analysis of Hopwood as precedent, see
supra note 51. See also Donald L. Beschle, “You’ve Got to Be Carefully Taught: Justifying
Affirmative Action After Croson and Adarand, 74 N.C. L. R EV. 1141, 1152-53 (1996) (contending that Powell’s forward-looking rationale in Bakke lost ground in subsequent
cases that focused on the existence of past guilt to justify affirmative action).
Professor Chin argues that the vagueness that inheres in the diversity standard accompanied by academia’s loose application of Bakkean affirmative action requirements currently jeopardizes the future viability of Bakke and diversity-based affirmative action
before the Rehnquist Supreme Court. Gabriel J. Chin, Bakke to the Wall: The Crisis of Bakkean
Diversity, 4 WM. & MARY BILL RTS. J. 881, 890-911, 924-30 (1996).
Unfortunately, the general decline of “racial discrimination” from the public discourse
in favor of the less controversial goal of “diversity” was consistent with a variety of reactionary explanations for the under-parity representation of various groups of color
in society’s institutions, ranging from those of The Bell Curve variety that resurrected
long discredited notions of biological inferiority, see supra note 106, to model minority
paradigms that posit the cultural inferiority of non-model minority groups.
L INDA J. ZIMBLER, N ATIONAL C ENTER FOR EDUCATIONAL STATISTICS, U.S. D EP’ T OF EDUC ., FACULTY AND I NSTRUCTIONAL STAFF : WHO ARE T HEY AND W HAT D O T HEY D O? 7, 14-15 (1994). The
underrepresentation in these fields is particularly troubling given the importance of these
research areas to community issues and formation. Some may argue that such categorical
concentrations represent free choice or cultural priorities of APAs as a group as opposed to exclusionary practices. This analysis begs the question by failing to see that
exclusionary practices or stereotyping may shape cultural priorities of a group or individual. For example, if English departments are reluctant to hire APA literature professors based on prevalent stereotypes of poor language and communication skills, then
APAs considering doctoral programs will rationally forego pursuing Ph.D.s in English,
which in turn, reinforces the problem. While exercising their “free choice,” individuals
can certainly be expected to respond to the effects of racial and cultural stereotyping.
More research and data collection needs to be conducted to measure the extent to which
external factors influence career decisions. Some qualitative research and anecdotal
evidence confirm the presence of entry barriers for APA faculty in non-stereotypical
fields and disciplinary tracking prior to the Ph.D. stage. Ironically, however, the perceived success of APAs in higher education renders consistent research and useful data
collection by monitoring agencies the exception, not the rule.
Z IMBLER, supra note 121, at 15, table 6 (reporting statistics for full-time faculty with any
instructional responsibilities by race/ethnicity for Fall of 1992). For recent data on law
school hiring, see Alfred C. Yen, A Statistical Analysis of Asian Americans and the Affirmative Action Hiring of Law School Faculty, 3 ASIAN L.J. (forthcoming 1996).
DEBORAH CARTER & REGINALD WILSON, TENTH ANNUAL REPORT ON MINORITIES IN HIGHER EDUCATION 29 (A MERICAN COUNCIL ON EDUCATION 1991) (noting that APAs were only 1.4% of
all higher education administrators in 1989, while constituting 4.7% of all full-time faculty).
See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). In Wards Cove, despite segregated conditions described in the dissent as a “plantation,” the Supreme Court found
that the categorical concentration of predominantly APA workforce in the low-skill
jobs and their underrepresentation in management or skilled jobs did not constitute
employment discrimination. To add insult to injury, when Congress overruled the
Court’s elevated standard of proof for employment discrimination cases in the Civil
Rights Act of 1991, both Houses approved a special exemption for the Wards Cove em-
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128
129
130
131
132
133
134
135
136
ployers, thereby denying relief under the act triggered by the APA and Alaska Native
Wards Cove plaintiffs.
ASIAN P ACIFIC AMERICANS FOR AFFIRMATIVE ACTION, W E WON’T G O BACK!: W HY ASIAN P ACIFIC
AMERICANS SHOULD SUPPORT AFFIRMATIVE ACTION 8 (1996) (on file with authors).
CHINESE FOR AFFIRMATIVE ACTION , THE B ROKEN LADDER ’92: A SIAN AMERICANS IN CITY GOV ERNMENT 5 (1992).
Id.
Id.
Id. at 11.
For example, APA women face unique problems such as racialized sexual harassment
that goes unaddressed by parity measurements. APA women are particularly susceptible to these types of workplace discrimination. For a more in-depth treatment of Asian
Pacific American women and sexual harassment, see Sumi Cho, Converging Stereotypes
in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, in ADRIEN
WING, CRITICAL RACE FEMINISM (forthcoming 1997). See also University of Pennsylvania
v. EEOC, 493 U.S. 182 (S. D. Iowa 1990); Jew v. University of Iowa, 749 F. Supp. 946 (1990);
Paul v. Stanford University, 1986 WL 614 (N.D. Cal.); Martha Chamallas, Jean Jew’s Case:
Resisting Sexual Harassment in the Academy, 6 YALE J. L. FEM. 71 (1994); Tape of Forum, Asian
Pacific Americans Fighting Back (October 1991) (on file with author). The cases of Jean
Jew at the University of Iowa, Rosalie Tung at the University of Pennsylvania, and Diane
Yoshikawa Paul at Stanford reveal an appalling manifestation of racial and sexual harassment that may represent only the tip of the iceberg.
See generally TAKAGI, supra note 5. Takagi explores admissions controversies in the mid1980s for APA students at elite universities such as UC Berkeley, UCLA, Brown, Harvard,
Princeton, and Stanford. APA applicants and community leaders voiced concern over
admissions rates that were lower than that of White applicants, despite having generally stronger median levels of educational achievement. See id. at 23, 59. “‘Not only,
then, are Asians being admitted overall at rates lower than Whites, but the very categories that seem to provide large advantages for Whites are not terribly consequential for
Asians. Going to a prep school almost doubles the chances that a white applicant will
be admitted, while the Asian applicant’s chances actually decline.’” Id. at 30-31 (quoting David Karen, Who Gets in to Harvard: Selection and Exclusion at an Elite College
318 (1985) (unpublished dissertation, Harvard University)).
See generally Eugenia Escueta & Eileen O’Brien, Asian Americans in Higher Education:
Trends and Issues, American Council of Education Research Briefs Series, Vol. 2, No. 4,
(1991); Sumi Cho, Confronting the Myths: The State of Asian American Academic Employment;
Proceedings of 10th Annual Asian Pacific Americans in Higher Education Conference (forthcoming 1996); Yen, supra note 122.
Eugenia Escueta & Eileen O’Brien, Asian Americans in Higher Education: Trends and Issues, in
THE ASIAN AMERICAN EDUCATIONAL EXPERIENCE 259, 267 (Don T. Nakanishi & Tina Yamano
Nishida eds., 1995).
CHINESE FOR AFFIRMATIVE ACTION , THE B ROKEN LADDER ’92: A SIAN AMERICANS IN CITY GOV ERNMENT 5 (1992).
One definition of “glass ceiling” discrimination is forwarded by Bettina Plevan, Chair
of the 1992 Committee on Women in the Profession of the Association of the Bar of the
City of New York: “The glass ceiling refers to the transparent but very real barrier between middle management and its professional equivalent and the more elusive realm
of success at the top of the ladder . . . .” Cynthia F. Epstein et al., Glass Ceilings and Open
Doors: Women’s Advancement in the Legal Profession, 64 FORDHAM L. REV. 306, 306 (1995).
For a discussion of how the glass ceiling operates against APA scientists and engineers,
see Paul Ong & Evelyn Blumenberg, Scientists and Engineers, in THE STATE OF ASIAN P ACIFIC AMERICA: E CONOMIC DIVERSITY, ISSUES AND POLICIES 165-89 (Paul Ong ed., 1994).
Escueta & O’Brien, supra note 132, at 8. This means that APAs as a group also have the
largest proportion of untenured, tenure-track faculty. Various unfair tenure and promotion practices serve the same purpose as earlier practices that excluded APAs from
unions and occupational sectors, namely the preservation of White property interests
in the best jobs and positions of privilege within occupations. Ironically, model minor-
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138
139
140
141
142
143
144
145
146
147
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ity stereotypes may trigger academic jealousy and fears of unfair competition that isolate APAs from established (and voting) colleagues as well as from junior faculty. Often, such fears of Asian superiority are compensated by negative model minority ascriptions of deficits in such intangible categories as “presence,” “self-confidence,” or
“collegiality” that are then used to deny APA candidates promotion or tenure.
Id. (citing Equal Employment Opportunity Commission, Higher Education Staff Survey, 1989 EEO-6 Detail Summary Report (unpublished data, 1991)).
Historical discrimination and contemporary problems provide the unifying social conditions for construction of a pan-ethnic “Asian Pacific American” identity. While it
makes historical sense to aggregate the experiences of Americans of Chinese, Japanese,
Korean, Filipino, Asian Indian, Vietnamese, Cambodian, and others of ethnic Asian
Pacific descent to discuss an APA history of discrimination, it is dangerous to aggregate all APA groups in a contemporary “Horatio Alger”-like American success narrative. In fact, there are wide disparities in the socioeconomic status among various
Asian subgroups. Ong & Hee, Economic Diversity, supra note 103, at 31-56.
Herbert Barringer et al., Education, Occupational Prestige, and Income of Asian Americans,
63 S OC. OF EDUC. 27, 29 (1990).
CARTER & WILSON, supra note 123, at 22, 24-25, 27-28. The authors report that in 1989, the
full-time male to female faculty percentages by racial minority group were as follows:
PERCENTAGE OF FULL-TIME FACULTY (1989)
MEN
WOMEN
African American
53%
47%
Latina/o
67%
33%
American Indian
66%
34%
APA*
79%
21%
* Note that ACE statistics use the term Asian American regardless of U.S. citizenship,
and therefore includes both citizens and noncitizens. See also Escueta & O’Brien, supra
note 132, at 8.
This American Council of Education (“ACE”) study also revealed that in 1989, women
earned only 29% of APA Ph.D.s compared to 43% of all women earning doctorates in
the general population. Furthermore, while APAs as a group have the lowest tenure rate of
all groups at 41%, APA women suffer an even lower rate of 31%. Categorical concentrations also differ widely according to gender. As mentioned above, engineering has
the highest concentration of APA faculty. Almost 17% of all APA men employed in
higher education work in this field. However, only 1.1% of APA women are employed
as faculty in engineering departments. APA men are 4% of all full-time faculty, but
have higher percentage representations in computer sciences (10%), natural sciences (7%),
and first-professional disciplines (7%). By contrast, the only over-parity representation of APA women exists in the field of foreign languages and area studies.
See generally U.S. CIV. RTS. COMM ’N REP., C IVIL RIGHTS I SSUES F ACING ASIAN AMERICANS IN
THE 1990’ S (1992) [hereinafter C IVIL RIGHTS I SSUES ]; Oversight Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, 100th
Cong., 1st Sess. (1987). See also Chang, supra note 71, at 1252-55; Kang, supra note 112.
See CIVIL R IGHTS I SSUES, supra note 141, at 46-47.
Kang, Note, supra note 112, at 1928.
J OHN HAYAKAWA TOROK, COMMITTEE A GAINST ANTI-A SIAN VIOLENCE, C HRONOLOGY OF BIASM OTIVATED OR RELATED KILLINGS SINCE 1981 (1993).
Special Circumstance, ASIANW EEK, May 10, 1996, at 4.
Penalty enhancement statutes provide for harsher penalties for crimes motivated by
prejudice against groups.
Other examples of anti-Asian violence include: a police detective brutalized Long Guang
Huang while falsely arresting him in May 1985; youths fractured the skull and legs of
Sing Vang, a Vietnamese refugee, in September 1985; a gang called the “Dotbusters” beat to
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death Navroze Mody, an Asian Indian American, in September 1987. In 1989, Jim Loo,
a Chinese American, was murdered in a pool room fight in which he was called “gook,”
“chink,” and blamed for the death of American soldiers in Vietnam. The same year, a
gunman motivated by racial hatred strafed a schoolyard with an automatic weapon,
killing five children of Southeast Asian descent. In 1990, Hung Troung, a fifteen yearold [sic] Vietnamese youth, was killed by two men, said to be skinheads, shouting “white
power.” While screaming “Karate! Karate!,” skinheads in Denver forced six Japanese students to stand in a line and beat them with baseball bats. In the summer of 1992, some
of the rioters in Los Angeles deliberately targeted Asian American businesses. A nineteen-year-old Vietnamese American, Luyen Phan Nguyen, was beaten to death at a party
while onlookers yelled “Viet Cong.”
Kang, Note, supra note 112, at 1927 n.11. See also Cynthia K. Lee, Race and Self Defense:
Toward a Normative Conception of Reasonableness, 81 MINN. L. REV. (forthcoming Dec. 1996)
(discussing the murder of Yoshihiro Hattori, a foreign exchange student killed in alleged
self-defense, and the shooting of Steffan Wong by a neighbor who presumed that Wong,
because he was Asian, posed a martial arts threat) (manuscript at 43-56, on file with authors); John Hayakawa Torok, On the Intersections of Violence Racial Nativism, Law and White
Supremacy: An Asian American Perspective (June 2, 1994) (unpublished manuscript presented at the 5th Annual Critical Race Theory workshop, on file with authors). Torok catalogs the following: A white public school teacher pushed 19-year old Ly Yung Cheung to
her death in front of a New York city subway train in 1984. He believed that he was pursued by Asian demons and stated, “Now we’re even” as she died. Jean Har-Kar Fewel, an
8-year old orphan and native of Hong Kong was found raped, murdered, and left hanging
from a tree in North Carolina. In the apartment of the man arrested for her murder, police found a copy of a Penthouse magazine that included a photopictorial that eroticized
the torture, bondage, killing, and hanging of young Japanese women. Paul Him Chow was
bludgeoned to death in Greenwich Village in 1988, his face and head beyond recognition.
Police refused to classify the attack as bias-related despite their determination that there
were at least four attackers and the victim’s prior complaints of harassment for being
gay and Asian in the same area.
See generally NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM , 1995 AUDIT OF VIOLENCE
AGAINST A SIAN PACIFIC AMERICANS: THE CONSEQUENCE OF INTOLERANCE IN AMERICA (1996).
See, e.g., Carol Innert, College Admission Study Finds Asian-Americans Have a Gripe, WASH.
TIMES , Dec. 16, 1995, at A5; Living by the Numbers: Has the Time Come to Abolish Affirmative Action? An Interview with the Two Sponsors of What Has Been Called ‘the Angry White
Men’s Initiative,’ S.F. CHRON., Feb. 12, 1995, at Zone 1 (Sunday).
See Kang, Negative Action, supra note 25, at 2 n.4.
See Cho, Model Minority Mythology, supra note 70.
Jerome Karabel & David Karen, Go to Harvard; Give Your Kid a Break, N.Y. TIMES , Dec. 8,
1990, at 25; Karen De Witt, Harvard Cleared in Inquiry of Bias, N.Y. TIMES, Oct. 7, 1990, §1, at
35; Letter from Thomas J. Hibino, Acting Regional Director, Office for Civil Rights, U.S.
Department of Education, to Derek Bok, President, Harvard University (Oct. 4, 1990)
(on file with the authors).
This sort of treatment is called “neutral action,” in contrast to both “affirmative action”
and “negative action.” See supra III.D.1, ¶3.
For example, during the Reagan administration, the Office of Federal Contract Compliance
Programs, charged with enforcing Title VII anti-discrimination laws for public employers,
suffered severe budget cuts that slashed personnel more than 50% between 1979 and 1985.
M.V. Lee Badgett & Heidi I. Hartman, The Effectiveness of Equal Employment Opportunity
Policies, in ECONOMIC PERSPECTIVES ON AFFIRMATIVE ACTION 57, 63 (Margaret C. Simms ed., 1995).
Badgett and Hartman note a similar phenomenon of declining federal enforcement of antidiscrimination laws under the Equal Employment Opportunity Commission during the
Reagan years. Id. See also Jennifer Russell, The Race/Class Conundrum and the Pursuit of Individualism in the Making of Social Policy, 46 HASTINGS L.J. 1353, 1436-37 (1995) (observing that
“[u]nder the Reagan administration, there was no serious enforcement against civil rights
valuations by schools, colleges, or job training institutions. Instead, civil rights agencies slashed data collection, investigations, and public release of information . . . . Although the laws were still on the books, the basic attitude was to minimize enforcement.”).
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Sumi Cho, A Theory of Racial Mascotting, Remarks at the First Annual Asian Pacific
American Law Professors Conference (Oct. 14, 1994) (discussing how APAs have been
relegated to the role of a “racial mascot” for conservatives in contemporary political
battles).
Eric Yamamoto forwards the concept of “simultaneity” to convey that APAs as a group
are not simply subjugated by Whites or manipulated by Whites as a “model minority,”
but also exercise agency to oppress African Americans and Latina/os. For example,
APAs may be discriminated against by Whites (ceilings on Asian admissions at elite
schools); be manipulated by Whites (forwarded by affirmative action opponents as the
true victims); and simultaneously be perpetrators of oppression (by opposing affirmative action when it does not serve their immediate interests). Professor Yamamoto advocates “interracial justice,” a basic commitment to anti-subordination among groups
of color. Eric Yamamoto, Rethinking Alliances: Agency, Responsibility, and Interracial Justice, 3 UCLA ASIAN PAC. AM. L.J. (forthcoming Oct. 1996).
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